501 S.W.3d 681
Tex. App.2016Background
- T.D.L., born to Karla Frith and Charles Dwayne Lankford, lived with Lankford from infancy; Lankford frequently worked abroad and elected expatriate status in 2012, limiting his U.S. presence.
- Stephanie Smith (Lankford’s wife since 2008) lived in the family home and had care, control, and possession of T.D.L. for the statutory period before filing.
- Smith filed for divorce in Nov. 2014 and moved to modify an existing 2004 conservatorship order to be named joint managing conservator and to have the exclusive right to designate the child’s primary residence. She asserted standing under Tex. Fam. Code § 102.003(a)(9).
- Due to prior procedural errors, the 2004 order named the child’s grandmother, Roberta Gresham, as managing conservator; Lankford and Gresham later sought to modify that order in 2014.
- The trial court severed the conservatorship issue, concluded Smith had standing under §102.003(a)(9), overruled Lankford’s plea to the jurisdiction and motion to dismiss, and entered temporary orders appointing Smith as joint managing conservator.
- Lankford and Gresham sought mandamus relief, arguing the trial court misdefined "control" under §102.003(a)(9) and thus lacked jurisdiction to permit Smith’s modification suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smith had statutory standing under Tex. Fam. Code §102.003(a)(9) to seek modification | Smith: She had "actual care, control, and possession" for the required period; that satisfies (a)(9) under the Jasek definition | Lankford/Gresham: "Control" requires legal control/authority to make legally significant decisions; Smith lacks that legal control | Court held Smith had standing; adopted Jasek’s definition of "actual control" (fact-based, not legal/title control) |
| Proper definition of "control" in §102.003(a)(9) | Smith: "Actual control" means factual power to guide/manage/restrict the child (Jasek) | Lankford/Gresham: Must mean "legal control" (authority to make legal decisions) to protect parental rights | Court held "actual control" means factual exercise of guidance/management, not necessarily legal authority; Jasek is correct |
| Whether Troxel requires a narrow (legal-control) reading to protect parental due-process rights | Lankford/Gresham: Troxel requires protection of parental liberty, so statute must be construed to require legal control | Smith: Troxel addressed original visitation with parental presumption; does not dictate §102.003(a)(9) construction in modification suits | Court: Troxel does not alter §102.003(a)(9) analysis; parental presumption does not apply in modification suits and Troxel does not mandate legal-control reading |
| Whether mandamus relief is appropriate to review denial of plea to jurisdiction and temporary orders | Lankford/Gresham: Trial court misapplied law; no adequate appellate remedy because orders are temporary/nonappealable | Respondent: Trial court acted within discretion applying Jasek and factual record; mandamus not warranted | Court denied mandamus: no clear legal error or misapplication; trial court did not abuse discretion |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standard: extraordinary remedy; clear abuse of discretion required)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (trial court has no discretion in determining law; misapplication may justify mandamus)
- Geary v. Peavy, 878 S.W.2d 602 (Tex. 1994) (mandamus appropriate for conservatorship jurisdictional disputes)
- In re Derzapf, 219 S.W.3d 327 (Tex. 2007) (temporary SAPCR orders are nonappealable; mandamus may be appropriate)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental liberty interest recognized; parental presumption discussed in visitation context)
- Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523 (Tex. App.—Austin 2011) ("actual control" means factual exercise of guidance/management, not legal/constructive authority)
- In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2008) (holding that "control" requires legal authority to make decisions; contrary view to Jasek)