Gray v. Shook, 329 S.W.3d 186

G.W. was born July 9, 2003 to David Gray and Lucy Wood; Gray filed for joint managing conservatorship with exclusive right to designate residence, later Shook, G.W.'s maternal grandmother, intervened requesting exclusive right to establish primary residence.
A bench trial in June 2008 heard Shook, Gray, Lucy, and Green testify; Shook claimed G.W. lived with her in Victoria, raised by her and her husband for about a year-and-a-half, with Lucy contributing but primarily living elsewhere.
Shook argued it would significantly impair G.W.'s physical health if Gray were appointed managing conservator due to removal from the only home she knew and her security system in Victoria.
Gray contended he should have greater access and eventual custody; he described a strong bond with G.W. and asserted he could provide a stable home in Seattle, with visits burdened by distance and work.
The trial court found Shook should be sole managing conservator, Gray a possessory conservator, and ordered no co-residence with G.W. or Shook; it issued findings of best interest favoring Shook.
This appeal challenging the trial court’s decision as an abuse of discretion was sustained; the court remanded for custodial hearings between Gray and Lucy, noting changing circumstances could affect best interests.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Overcoming the parental presumption	Gray argues no specific act by Gray harmed G.W., so presumption not overcome.	Shook contends protective harm from uprooting and lack of bonding justify nonparent custody.	Abuse of discretion; no specific act or identifiable conduct by Gray to cause harm.
Speculative harm evidence	Gray asserts presented evidence of actual harm from uprooting is insufficiently speculative to overcome presumption.	Shook relies on bonding, separation anxiety, and potential long-term harms to argue detrimental effects.	Abuse of discretion; evidence of potential harms was speculative and not sufficient to rebut presumption.
Sufficiency of evidence of harm tied to Gray	Gray maintains there were no specific acts by Gray causing harm; the court erred by crediting non-actor harm.	Shook contends the combination of separation anxiety and lack of bonding supports significant impairment if uprooted.	Evidence failed to show specific, identifiable acts by Gray causing significant harm; overstepped presumption limits.
Remand vs. render decision	Judgment should be reversed and rendered in Gray's favor given improper weighting of non-specific harm.	Remand necessary to update record and assess best interests under current circumstances.	Remand appropriate; interest of justice requires custodial hearings between Gray and Lucy given time elapsed and possible changed circumstances.

May v. May, 829 S.W.2d 373 (Tex.App.-Corpus Christi 1992) (nonparent must prove specific actions or omissions to rebut presumption)
Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990) (strong presumption in favor of parental custody; need specific harm evidence)
In re G.R.W., 191 S.W.3d 896 (Tex.App.-Texarkana 2006) (nonparent may rebut presumption with evidence of negative effect on child absent blameworthy act)
In re Rodriguez, 940 S.W.2d 265 (Tex.App.-San Antonio 1997) (environmental impact of removal can rebut presumption without blameworthy act)
Chavez v. Chavez, 148 S.W.3d 449 (Tex.App.-El Paso 2004) (illustrates limits of nonparent proof; context of previous decisions cited)
In the Interest of R.T.K., 324 S.W.3d 896 (Tex.App.-Houston [14th Dist.] 2010) (record supported trial court finding on potential emotional development impact)
De La Pena, 999 S.W.2d 521 (Tex.App.-El Paso 1999) (recognizes stability and safety are critical to child development in ultimate inquiry)