                                   IN THE
                           TENTH COURT OF APPEALS

                                 No. 10-11-00141-CV

            IN THE INTEREST OF A.H. AND C.A.H., II, CHILDREN


                           From the 220th District Court
                               Bosque County, Texas
                         Trial Court No. 06-01-00806-BCFM


                           MEMORANDUM OPINION


          Christopher Holmes appeals from an order naming his parents joint managing

conservators with the right to establish the domicile of his two children, A.H. and

C.A.H., II. Holmes was also named a joint managing conservator with possession and

access to the children pursuant to the standard possession order so long as he

participated in counseling with his current wife. TEX. FAM. CODE ANN. Ch. 153, Subch. F

(West 2011). Holmes complains that the trial court erred by giving his parents the right

to establish the children’s domicile rather than placing the children with him. We

affirm.
Procedural History

        Christopher and Mitzi are the parents of A.H. and C.A.H., II, children born

during their marriage. In 2006, Christopher and Mitzi divorced and they were named

joint managing conservators of the children, with Mitzi having the right to establish the

children’s residence without regard to geographic location.        Christopher’s parents,

Shawn and Barbara Holmes, were given limited possession and access to the children in

the divorce decree.

        The children had lived with Shawn and Barbara off and on throughout their

lives, with either or both parents at different times. In September of 2009 Barbara, who

had been listed as an emergency contact, was called by the school to pick up C.A.H.

because he needed to go to the doctor. Mitzi left the children with Shawn and Barbara

permanently approximately a week later. Mitzi picked the children up from school one

day in November of 2009 for lunch and returned them to school, which was the last

time the children saw her.             Shawn and Barbara had possession of the children

continuously until the final hearing other than a few visits when Christopher had the

children. In August of 2010, Christopher filed a motion to modify the divorce decree

seeking primary custody of the children. In October of 2010, Shawn and Barbara filed a

petition seeking primary custody of the children as well.

        After a bench trial, the court determined that the parties would be named joint

managing conservators of the children and that Shawn and Barbara would have the


In the Interest of A.H. and C.A.H. II, Children                                    Page 2
right to establish the children’s domicile without a geographical restriction.

Christopher was awarded possession and access to the children in accordance with the

standard possession order so long as he and his current wife attended counseling

sessions together.       The trial court found that the appointment of either parent as

managing conservator would not be in the best interest of the children because it would

significantly impair the children’s health or emotional development.1

Appointment of Managing Conservator

        In his sole issue, Christopher complains that the trial court erred by awarding his

parents the right to establish the children’s residence rather than him because there was

insufficient evidence of his lack of fitness as a parent as required by the United States

Supreme Court and the Texas Supreme Court.2 Troxel v. Granville, 530 U.S. 57, 120 S. Ct.

2054, 147 L. Ed. 2d 49 (2000); In re Scheller, 325 S.W.3d 640 (Tex. 2010); In re Chambliss,

257 S.W.3d 698 (Tex. 2008). Presumably Christopher is complaining that the evidence

was insufficient to establish that his appointment as managing conservator would

significantly impair the children’s physical health or emotional well-being. However,

none of the cases cited by Christopher are comparable to this situation. The cases cited

above, Troxel, Scheller, and Chambliss, all involve situations in which grandparents were

seeking visitation with their grandchildren who were currently residing with a parent.

1Mitzi filed an answer but did not appear at the final hearing and has not appealed the judgment.
Therefore, we will not discuss the portions of the order relating specifically to her.

2Christopher does not set forth whether he is challenging the legal or factual sufficiency of the evidence;
however, it is not necessary to make that distinction here.

In the Interest of A.H. and C.A.H. II, Children                                                     Page 3
None were modification proceedings. Here, A.H. and C.A.H., II were not residing with

either parent at the time of the final hearing, but had been residing with Shawn and

Barbara for well over a year.

        There is a presumption that a parent should be appointed as a managing

conservator unless that appointment would not be in the best interest of the child

because the appointment would significantly impair the child’s physical health or

emotional development, generally referred to as the “parental presumption.” TEX. FAM.

CODE ANN. § 153.131(a). However, this presumption does not apply to modification

proceedings. In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).

        Further, it was not necessary for the evidence to demonstrate Christopher’s lack

of “fitness” as a parent or significant impairment because the parental presumption did

not apply.      In re V.L.K., 24 S.W.3d at 341.   Rather, the standard for granting the

modification is set forth in section 156.101 of the Family Code. See TEX. FAM. CODE ANN.

§ 156.101 (West 2011) (petitioner need only demonstrate that modification would be in

the children’s best interests and that the children were voluntarily relinquished to

another person for at least six months). Therefore, it is not necessary for us to address

the evidence relating to any significant impairment of the children.

        Christopher does not argue that the evidence was insufficient regarding the

statutory grounds in section 156.101. Nor does he challenge the constitutionality of the




In the Interest of A.H. and C.A.H. II, Children                                    Page 4
statutory provisions.        The trial court’s judgment was not erroneous.   We overrule

Christopher’s sole issue.

Conclusion

        Having found no error, we affirm the judgment of the trial court.




                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
[CV06]




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