Anish Jhaveri v. Kelly McBeth
03-14-00261-CV
| Tex. App. | Dec 10, 2015Background
- Jhaveri appeals an order appointing McBeth sole managing conservator of H.E.J.S.; trial court expressly found McBeth had standing under section 102.003(a)(9).
- H.E.J.S. is the 2005-born child of Jhaveri and Quincy Smith; 2006 order designated Smith as conservator with the exclusive right to designate primary residence; Jhaveri had possessory rights.
- In 2011 Jhaveri petitioned to modify to sole managing conservator; McBeth intervened with Smith’s consent seeking sole managing conservator or joint with exclusive residency rights.
- Guardian ad litem Dr. Lisa Walker was appointed; she initially recommended joint managing conservators with McBeth as conservator with exclusive right to designate residence, then switched to recommend McBeth alone due to concerns about Jhaveri’s volatility.
- After a December 2013 hearing, the trial court appointed McBeth as sole managing conservator and Jhaveri as possessory conservator, finding material and substantial change and best interests supported modification.
- This appeal challenges standing, modification grounds, the trial court’s best-interest determination, and the constitutionality of Tex. Fam. Code §156.101; court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing under §102.003(a)(9) for McBeth. | Jhaveri argues McBeth lacks actual care and possession to confer standing. | McBeth had actual care and possession for the statutory period. | upheld standing under §102.003(a)(9) over Jhaveri’s arguments. |
| Whether grounds for modification and material change were shown. | Jhaveri contends no material change or best-interest support. | Court properly found material change and best interest to modify. | court affirmed modification and best-interest finding. |
| Constitutionality of §156.101 raised for first time on appeal. | Troxel-based due-process concerns require presumption in favor of parent. | Statutory challenge waived because not raised in trial court. | waived; issue declined on appeal. |
Key Cases Cited
- Jasek v. Texas Dept. of Family & Protective Servs., 348 S.W.3d 523 (Tex. App.—Austin 2011) (standing under 102.003(a)(9) requires actual care and possession, not ultimate authority)
- In re J.C., 399 S.W.3d 235 (Tex. App.—San Antonio 2012) (statutory standing framework governs who may file to modify parent-child relationships)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standards for legal sufficiency and reviewing due process)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for best interests in custody disputes)
- Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006) (hybrid abuse-of-discretion review in modification cases; weigh evidence)
- In re T.M.P., 417 S.W.3d 557 (Tex. App.—El Paso 2013) (material and substantial change must be shown; case-specific)
- In re A.L.E., 279 S.W.3d 424 (Tex. App.—Houston [14th Dist.] 2009) (considerations of stability and best interests in modification)
- In re S.S.G., 208 S.W.3d 1 (Tex. App.—Amarillo 2006) (no parental consent required for nonparent standing under 102.003(a)(9))