in the Interest of S.A.H, a Minor Child, 420 S.W.3d 911

Background

Child S.A.H. born 2004; original divorce decree (2006) named parents joint managing conservators with Mother having right to designate primary residence.
In Oct 2009 Mother left S.A.H. with maternal Great Aunt (after brief reintroduction); Mother signed a Durable Power of Attorney authorizing Great Aunt to enroll, seek medical treatment, and shelter the child while Mother "got her life together."
Great Aunt cared for S.A.H. for ~14 months; Mother visited only sporadically, did not financially support him during that period, and attempted to regain possession in Jan 2011.
Great Aunt filed to modify custody under Tex. Fam. Code §156.101 alleging Mother voluntarily relinquished primary care for at least six months; trial court awarded joint managing-conservator status to Mother, Father, and Great Aunt and granted Great Aunt exclusive right to designate primary residence.
Trial court also entered (and made permanent) an injunction restricting parties from having the child in the presence of an unrelated opposite-sex dating partner and restrained corporal punishment; Mother appealed raising constitutional and evidentiary challenges.

Issues

Issue	Mother’s Argument	Great Aunt/State’s Argument	Held
Constitutionality of Tex. Fam. Code §156.101 / parental presumption	§156.101 is unconstitutional (facially and as applied) because it allows transfer of primary custody to nonparent without applying parental presumption required in original suits (Troxel concerns).	Even if presumption applied, unchallenged §153.373 permits rebuttal (voluntary relinquishment + best interest); prior authority holds no parental presumption in modifications.	Court avoids ruling on constitutionality; holds that even if presumption applied it was rebutted on record under §153.373, so no reversible error.
Sufficiency of evidence for voluntary relinquishment and best interest (modification proper)	Evidence legally/factually insufficient to show Mother voluntarily relinquished care for ≥6 months (and best interest).	Trial evidence showed an agreement, long-term possession (~14 months), Great Aunt exercised parental control, and child thrived; best-interest factors supported modification.	Court finds record supports voluntary relinquishment for ≥12 months and that modification was in child’s best interest; no abuse of discretion.
Injunction restricting association with unrelated opposite-sex dating partners	Injunction is unsupported by evidence, overbroad, and violates Mother’s constitutional association/liberty rights.	Mother’s history of serial live-in relationships (some with criminal histories) and an incident of corporal punishment justified restriction as protective of child’s best interest.	Court upholds injunction as within trial court’s broad discretion and supported by evidence; constitutional claim inadequately briefed.
Deviation from Standard Possession Order (weekend schedule)	Trial court abused discretion by deviating from standard weekend schedule, reducing Mother’s weekend possession.	Deviation justified to allocate limited weekend possession among three conservators and to de-conflict Father’s existing weekend; court made supplemental findings.	Court affirms deviation as within discretion given three conservators and supporting findings.
Admission of expert (counselor) who had therapeutic role with child	Expert had a conflict of interest (dual therapeutic and evaluative roles); testimony should be excluded under administrative rules.	Admissibility governed by evidence rules (Rule 702), not administrative code; no basis shown to exclude under evidentiary standards.	Court holds trial court did not abuse discretion in admitting testimony; administrative rules do not automatically render testimony inadmissible and Mother cited no legal basis to exclude it.

Key Cases Cited

Troxel v. Granville, 530 U.S. 57 (2000) (plurality: parents have fundamental liberty interest; struck down overly broad nonparent visitation statute as applied)
In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (no parental presumption in modification proceedings)
In re J.F.C., 96 S.W.3d 256 (Tex. 2002) (evidentiary standard and judicial review in parental-rights suits)
In re M.N.G., 113 S.W.3d 27 (Tex. App.—Fort Worth 2003) (rejected constitutional challenge to §156.101; due process protected by statute)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors for best-interest analysis)