Shout out to winning lawyer Kirk Pittard, a Dallas lawyer who handles civil appeals!  He tells me that this appeal was a companion to a civil lawsuit over the same matter.  Looks like a good result to me. 


In a recent decision by the Dallas Court of Appeals, the rights of a biological father were vindicated.  In the case of In the Matter of B.B.M, a child’s biological father appealed the trial court’s determination appointing the child’s non-parents as joint managing conservators.  In the Matter of B.B.M., — S.W.3d –, No. 05-08-00501-CV, 2009 WL 1801035 (Tex. App. – Dallas, June 24, 2009). 

The facts of B.B.M. are very interesting.  Biological father and mother live together as boyfriend and girlfriend.  Mother and biological father break up and mother moves out of the couple’s home.  After a few months, mother moves in with her new boyfriend.  Shortly after mother moves in with her new boyfriend, she discovers she is pregnant.  New boyfriend and mother believe that new boyfriend is the father (turns out he wasn’t) and decide to place the child up for adoption. 

Biological father later learns of mother’s pregnancy and becomes concerned the child might be his.  Mother continues to work with an adoption agency to place the child with adoptive parents in Idaho.  Biological father learns that mother is about to give the child up for adoption, contacts the adoption agency, informs it of his concerns that he is the child’s father and that he objects to the pending adoption.  Adoption agency proceeded with the adoption, the and Idaho parents took the baby home from the hospital after executing an acknowledgment they understood there was a risk the biological father (still disputed at this point) would not relinquish his rights to the child.

Approximately three weeks after the child’s birth, biological father filed notice of his intent to claim paternity of the child.  In response, the adoption agency filed suit requesting the termination of biological father and mother’s parental rights.  Biological father counter sued to establish paternity, to which the court ordered a paternity test which confirmed mother’s current boyfriend was NOT the father. 

After a trial by jury, the court awarded managing conservatorship of the child to the adoptive parents.  Biological father then appealed this determination. 

The court noted the strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply embedded in Texas law.  (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)).  To overcome this presumption, a nonparent must prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child’s physical health or emotional development.  See Tex. Fam. Code Sect. 153.131(a).  The evidence required to do so must support the logical inference that some specific, identifiable behavior or conduct of the parent will probably harm the child.  Further, mere speculation that a nonparent would be a "better" custodian of the child is wholly inadequate to meet this burden.  

In reviewing the evidence presented at trial, the court noted the adoptive parents primarily related to the potential impairment of the child’s emotional development resulting from his removal from the adoptive parent’s home.  The court also noted that the proper focus of inquiry is solely whether the placement of the child with the natural parent would significantly impair the child’s physical or emotional health. 

In reversing the trial court, the court held there was no evidence presented that the child suffered from any ill effects from time spent with his biological father and that when a nonparent and a parent are both seeking managing conservatorship, close calls go to the parent.

The rights of a parent have been characterized as essential and far more precious than any property right.  As a Dallas Divorce Lawyer, I am ready, willing and able to help protect these precious rights.