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Click here for the full text of this decision FACTS:On Sept. 1, 2005, Hugo Castillo filed a suit affecting the parent-child relationship. He sought to be named sole managing conservator of his and Maribel Garcia’s three children. On Sept. 7, the trial court signed an order that Garcia appear on Oct. 18, 2005, to respond to the petition. On Oct. 18, Castillo appeared with his attorney and Garcia appeared pro se. The trial court called the case and conducted a very brief recorded proceeding in chambers. Castillo’s attorney told the court the children were currently living with Castillo and that Castillo was seeking sole managing conservatorship. When the judge asked Garcia if she had any objections, she responded, “Yes, because the children have always been with me.” The judge then told Garcia that if she wanted custody, she would have to hire an attorney. The court then, without having heard any evidence, orally appointed Castillo sole managing conservator and granted Garcia only supervised visitation. The court stated there would be a final hearing on Nov. 1 and told Garcia that “if [she was] going to object for [Castillo] to have custody of the children you need to come with an attorney on that date.” On Oct. 24, the court cancelled the Nov. 1 hearing was cancelled and did not reschedule it. On Nov. 9, 2005, the court signed a judgment that recited that, at the Oct. 18, 2005 trial, after both parties announced ready, Castillo was named sole managing conservator and Garcia possessory conservator of the children; and Garcia was ordered to have only supervised visitation at times mutually agreed to in advance by the parties. Garcia timely filed a motion for new trial that was overruled by operation of law. She appealed, arguing the proceedings violated her right to due process and the trial court abused its discretion in deciding the conservatorship, possession and access issues. Castillo did not file a brief. HOLDING:Reversed and remanded. The court criticized the trial court’s proceeding, noting it took place only 20 days after Garcia was served with the original petition and ordered to appear and respond. Although Garcia appeared as ordered, the court stated, she was not afforded an opportunity to present evidence or cross-examine witnesses. By failing to provide Garcia adequate notice of the trial and an opportunity to be heard, the 4th Court of Appeals held that the trial court violated Garcia’s fundamental right to due process. According to the 4th Court, the trial court also abused its discretion by naming Castillo sole managing conservator and by deviating from the standard possession order in contravention of the Texas Family Code, which rebuttably presumes that it is in a child’s best interest for the parents to be named joint managing conservators and for possession to be in accordance with the standard possession order. Castillo did not overcome the burden of these presumptions, the court stated. Because Castillo presented no evidence at all, the trial court had no discretion to decide the conservatorship and possession issues contrary to the statutory presumptions, the court held. OPINION:Duncan, J.; Lopez, C.J., and Stone and Duncan, J.J.

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