Rosita Johnson v. Raymond Nicholas Kimbrough, 03-22-00100-CV

G.K., a child age five at trial, lived almost exclusively with maternal great-grandmother Rosita; mother Sara was sole/joint managing conservator in prior orders but died in March 2020.
July 2019 order named Sara and Rosita joint managing conservators, Rosita had exclusive right to designate the child’s primary residence, and father Raymond Kimbrough was a possessory conservator with a stepped-up visitation schedule.
After Sara’s death, Rosita petitioned to be sole managing conservator; Kimbrough counter-petitioned seeking sole managing conservatorship and attached an affidavit alleging statutory grounds to modify the primary-residence designation.
At the October 2021 hearing the trial court limited witnesses Rosita could call, repeatedly stated the case turned on whether father (a parent) should be displaced, and described a high burden to keep the child with a relative rather than a parent.
The trial court appointed Kimbrough sole managing conservator, denied Rosita’s motions for reconsideration and new trial (after Rosita argued the court had applied the fit-parent presumption improperly), and entered findings. Rosita appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the constitutional/statutory "fit-parent" presumption applies in a Chapter 156 modification when the parent seeking modification was not appointed a managing conservator in the order sought to be modified	Rosita: presumption does not apply because Kimbrough was not a managing conservator in the July 2019 order	Kimbrough: argued parent custody presumptions/control of custody favor a parent absent compelling evidence to the contrary	Court: presumption does not apply where the parent was not appointed managing conservator in the order being modified (fit-parent presumption inapplicable)
Whether the trial court actually applied the fit-parent presumption and limited Rosita’s evidence on that basis	Rosita: trial-court remarks and gatekeeping show it applied the presumption and excluded relevant evidence	Kimbrough: (implicitly) court correctly prioritized parental rights and was within discretion	Court: trial court did apply the fit-parent lens and thus misapplied the law (abuse of discretion)
Whether the legal error was harmful and requires reversal/remand	Rosita: error prevented a proper presentation and likely affected outcome	Kimbrough: error was harmless because evidence favored father	Court: error was harmful because the presumption skewed factfinding and gatekeeping; reversed and remanded for further proceedings

In re C.J.C., 603 S.W.3d 804 (Tex. 2020) (explaining fit-parent presumption and its limited application in modification proceedings)
Troxel v. Granville, 530 U.S. 57 (2000) (constitutional presumption that fit parents act in child's best interest)
In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (policy concerns—stability and preventing constant custody litigation—inform modification law)
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (best-interest factors framework)
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (trial court has no discretion to misstate or misapply law)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (appellate review deferential on credibility but requires evidentiary support)
NCNB Texas Nat’l Bank v. Coker, 765 S.W.2d 398 (Tex. 1989) (standards for reversible error and abuse of discretion)
Upjohn Co. v. Freeman, 847 S.W.2d 589 (Tex. App.—Dallas 1992) (applying wrong legal standard is abuse of discretion)
In re B.B., 632 S.W.3d 136 (Tex. App.—El Paso 2021) (parent not appointed managing conservator in the order sought to be modified cannot invoke the fit-parent presumption)