Brenda LEWELLING, Petitioner, v. Carl and Melba LEWELLING, Respondents, 796 S.W.2d 164

OPINION DOGGETT, Justice. At issue in this cause is the standard to be applied when a nonparent seeks appointment as managing conservator of a minor child. The applicable provision of the Family Code requires the nonparent to show that awarding custody to the natural parent “would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development.” Tex.Fam.Code Ann. § 14.01(b) (Vernon Supp.1990).

The court of appeals, while properly articulating this standard, failed to apply it correctly and, in so doing, improperly relied upon evidence of abuse of a mother by her spouse to deny her appointment as managing conservator of her child. 774 S.W.2d 801, 803 (1989). We, therefore, reverse the court of appeals’ judgment and remand the cause to the trial court with instructions for rendition of judgment in accordance with this opinion. Brenda Lewelling initiated a divorce from her husband Billy Lewelling and sought appointment as managing conservator of their son Jesse.

She alleged that Billy had physically abused her throughout their relationship. Although Billy did not seek custody of the child, his parents, Carl and Melba Lewelling, intervened in the divorce proceeding to be named managing conservators. At the hearing on temporary custody, Brenda testified that Billy had often beaten her during their marriage, that she had been hospitalized on several occasions as a result, once with a concussion from a blow to the head, and that this physical abuse continued during the time she was pregnant with Jesse.

The trial court awarded temporary custody to the Department of Human Services (DHS) with the right of placement. DHS opted to place the child with Brenda pending the outcome of the suit. The trial court ordered DHS to investigate both Brenda and the Lewellings. At the final custody hearing, the social worker who visited Brenda recommended that Jesse be placed with her. The social worker who investigated Carl and Melba suggested that Jesse reside with them. During the proceedings, Brenda’s allegation of physical abuse was bolstered by the testimony of Melba, as well as Billy’s brother.

There was no evidence to indicate that the child had been physically abused. At the close of the hearing, the trial court ordered that Carl and Melba be named as managing conservators of Jesse. Brenda and Billy were named as possesso-ry conservators. Although not referencing any specific evidence, the trial court concluded that naming Brenda as managing conservator would significantly impair Jesse’s physical health and emotional development.

The court of appeals affirmed the appointment of Carl and Melba as managing conservators based on the following evidence: 1) Brenda continued to see Billy after several incidents of physical abuse and testified that she might consider a reconciliation if he sought counseling; 2) Brenda continued to see Billy during the pendency of the divorce when he came to visit Jesse; 3) Brenda did not see Jesse for a period of approximately two months after Billy beat her and took Jesse to the grandparents’ house; 4) Brenda was unemployed, had little money, and lived in a small house with her mother and other family members; and 5) Brenda had twice been a patient at Terrell State Hospital. 774 S.W.2d 801, 803-804.

Brenda has presented a properly preserved “no evidence” point of error to this court. When reviewing such a challenge, we must consider only the evidence and reasonable inferences drawn therefrom which, when viewed in their most favorable light, support the court’s finding, disregarding all evidence and inferences to the contrary. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In the instant case, we must determine whether more than a scintilla of evidence exists to support the trial court’s finding that appointing Brenda as managing conservator would significantly impair Jesse’s physical or emotional well being. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). If no evidence exists, we must sustain Brenda’s point of error and reverse the judgment. The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. The Legislature, in enacting

section 14.01(b), codified that presumption by defining the procedure for appointment of a nonparent as managing conservator. Prior to 1987, that statute provided in relevant part: § 14.01. Court Appointment of Managing Conservator (

b) A parent shall be appointed managing conservator of the child unless the court finds that appointment of the parent would not be in the best interest of the child. Tex.Fam.Code Ann. § 14.01(b) (Vernon 1986). Although the parental preference was clear, the strength of that presumption was not. In 1987, however, the legislature made clear the paramount importance of the parental presumption by amending the statute to provide: (

b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless: (1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development; Tex.Fam.Code Ann. § 14.01(b) (Vernon Supp.1990) (emphasis supplied).

While there is apparently no legislative history relevant to its intended effect, this amendment was viewed as a significant change greatly strengthening the parental presumption: Thus, while there might be a lot of reasons appointment of a parent would not be in the best interest of the child, only one suffices to rebut the parental preference. This means that the fact that another contesting third party, for example, a grandparent, would be a better custodian of a child is not sufficient to rebut the parental presumption absent this impairment of physical health or emotional development. 89-1 State Bar

Section Report — Family Law 27 (J. Sampson ed. 1989) (emphasis supplied). The amendatory language requiring a showing that appointment of the parent would significantly impair the child’s physical or emotional development creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child. See Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963); see also Neely v. Neely, 698 S.W.2d 758, 760 (Tex.App.—Austin 1985, no writ). Under

section 14.01 as amended, the non-parent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally. This statute thus requires the nonparent to offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.

Since there is no evidence in the record to show that appointment of Brenda as managing conservator would significantly impair Jesse’s physical health or emotional development, the court of appeals erred in affirming the trial court’s award of permanent custody of the child to the grandparents. See Mumma, 364 S.W.2d at 221. The fact that Brenda was unemployed at the time of the custody hearing and living in somewhat crowded conditions is no evidence of significant impairment to the child. The visits to Terrell State Hospital constitute no evidence that placement with Brenda would emotionally impair the child.

Her testimony that she was released on the initial visit after being told she “didn’t need to be down there” is uncontra-dicted in the record. Similarly, her uneon-tested testimony established that the second and last visit, initiated by her husband and father-in-law, resulted in her release by the hospital within twenty-four hours because she had no mental problems. Most importantly, the court of appeals seems to place great weight on the evidence relating to the alleged physical abuse of Brenda, without any evidence that such abuse would significantly impair Jesse’s physical health or emotional development.

A parent should not be denied custody of a child based on the fact that he or she has been battered. We hold that evidence that a parent is a victim of spousal abuse, by itself, is no evidence that awarding custody to that parent would significantly impair the child. Any other result is contrary to the public policy of our State. Our decision today is consistent with recent legislative changes addressing the problem of family violence. As part of the 1987 amendments to

section 14.01, the Legislature added a provision specifically targeting the problem of family violence.

Section 14.01(c)(2), which sets forth the factors to consider when the natural mother and father are both seeking custody, states that evidence of abusive physical force by a parent against his or her spouse or a child shall be considered by the court in deciding custody. The provision creates a preference that the non-violent parent, rather than the violent parent, be appointed managing conservator. Thus, in a custody dispute between two parents,

section 14.-01(c)(2) allows evidence of spousal abuse to be considered only as a factor that weighs heavily against the abusive parent; such evidence does not weigh against the abused. As the abuser cannot take advantage of his acts of abuse in a custody battle with the abused, so the abuser’s parents also may not benefit from that abuse. While expressing continued concern for the best interest of the child, the Legislature has also determined that removing a child from a parent simply because she has suffered physical abuse at the hands of her spouse is not in the best interest of our state.

While trial courts should be afforded broad discretion in deciding family law questions, the Legislature has explicitly limited the exercise of that discretion when a nonparent seeks appointment as managing conservator. Although the facts of this case present a “close call” to Justice Gonzalez, 796 S.W.2d at 172, the Legislature has mandated how close calls should be decided — in favor of the natural parent. As quarterbacks, Monday morning or otherwise, we are obligated to follow the decisions of the legislative referee.

We cannot ignore the 1987 amendment and return to the less onerous best interest standard previously in effect. Rather than “judicially amending the statute,” as Justice Gonzalez claims, 796 S.W.2d at 171, we are adhering to our judicial function by enforcing the law as written. Carl and Melba, as nonparents seeking custody, are required to identify some act or omission committed by Brenda which demonstrates that naming her as managing conservator will significantly impair Jesse’s physical health or emotional development.

They cannot benefit from the abuse endured by Brenda at the hands of their son by offering it as some evidence of significant impairment to their grandchild. We reverse the judgment of the court of appeals and remand to the trial court for rendition of judgment that the natural parent, Brenda, be named as managing conservator. The trial court may find it necessary to hold further hearings on matters relating to support of the child and visitation rights. Concurring opinion by COOK, J. Dissenting opinion by GONZALEZ, J. Dissenting opinion by HECHT, J., joined by SPEARS, J. . See, e.g., Mumma v.

Aguirre, 364 S.W.2d 220, 221 (Tex.1963); Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 282 (1894). . See 89-1 State Bar

Section Report — Family Law 27 (J.

Sampson ed. 1989) (“Until 1987 there was considerable doubt as to the exact strength of the parental preference stated in [section 14.01].... [T]he caselaw was somewhat mixed as to whether the parental preference was ... of constitutional dimension to be given great weight and ‘one of the strongest presumptions known to law,' or whether it was little more than a tendency that could be avoided by introducing a mere scintilla of evidence going the other way."). .See also Wicoff, Joint Managing Conservator-ship P-22, State Bar of Texas Advanced Family Law Course (1987) (“[T]he evidence will have to be rather strong in showing some type of past physical abuse or neglect.

With regard to impairment of emotional development, it would seem that very strong psychological or psychiatric testimony would have to be offered as to the mental health of the parent [who is] being denied conservatorship."); Garcia & Orsinger, Legislative Update A-27, State Bar of Texas Advanced Family Law Course (1988) (referencing "stronger parental preference”). .

Justice Gonzalez twists our holding today as somehow barring trial courts from considering the failure of the natural parent to remove a child from an "unstable environment" in determining whether placement with the parent would substantially impair the child’s physical health or emotional development. After giving as an example a "rat infested crack house with drug addict, partner swapping" inhabitants, 796 S.W.2d at 171 n. 4, he concludes that Brenda’s residence at the time of trial was an "unstable environment." Id. at 171. This is an offensive mischaracterization of Brenda's living conditions.

Clearly, the act of a parent in placing a child in an unstable environment is the very type of conduct that the Legislature contemplated would significantly impair the physical or emotional development of a child. Yet it is precisely the type of evidence that Justice Gonzalez chronicles that is patently absent from the record in this case. . Justice Gonzalez relies heavily on testimony of Brenda’s brother, Fred Worley, concerning her emotional stability.

His statements in the record relate largely to Brenda’s admission to Terrell State Hospital and are so vague and conclusory as to constitute no evidence that placement of the child with Brenda would significantly impair Jesse's emotional development.

It should also be noted that Fred’s wife testified on Brenda’s behalf at the temporary custody hearing, stating that Brenda was a good mother, that her house was clean and that she kept the children clean and well-fed. .This includes evidence that Brenda would return to her husband after being beaten by him, as well as the emotional complications inherent in such an abusive relationship.

The characteristics exhibited by Brenda and cited by the court of appeals are symptoms of what has been termed the "battered woman syndrome." Victims of spousal abuse are often reluctant to terminate the abusive relationship because of an overwhelming feeling of helplessness and a low self-esteem. See generally Waits, The Criminal Justice System's Response to Battering, 60 Wash. L.Rev. 267, 272-294 (1985). A holding contrary to that which we reach today could only deter battered spouses from reporting their suffering lest they lose their children. .

Texas is one of several states that have enacted such statutory provisions favoring non-violent parents in custody determinations. See Note, Domestic Violence and Custody Litigation, 13 Hofstra L.Rev. 407, 425 (1985). . While this may not, as Justice Gonzalez indicates, 796 S.W.2d at 173, technically be a termination of parental rights action, it may have such an effect. Brenda lives with relatives in another county from her son and has no readily available transportation. Consequently, she is unlikely to be able, through the exercise of visitation rights, to have a substantial role in her child’s upbringing.

The only comfort Justice Gonzalez offers Brenda, however, is the possibility of petitioning the trial court for a change in custody and thus beginning anew her almost three-year effort to have her child returned to her.

He further fails to note that the burden in such a proceeding would be on Brenda to prove that (1) the circumstances of the child, the grandparents or Brenda have materially and substantially changed since the date of the trial court’s final order; and (2) retention of the grandparents as managing conservator would be injurious to the child's welfare; and (3) the appointment of Brenda would be a positive improvement for the child.

Tex.Fam.Code Ann. § 14.08(c) (Vernon 1986 and Supp.1990). .Both Justices Hecht and Gonzalez in their dissents urge that remand is required because of the amount of time that the child has lived with his grandparents. The asserted basis for a remand is a judicially created one: the final custody hearing in this cause was held March 11, 1988, and the fact that Jesse has lived with his grandparents for such a lengthy period is largely attributable to delays in the appellate process.

Directing a mother who has been deprived of her child for almost three years "to go and start over,” 796 S.W.2d at 171 (Hecht, J., dissenting), is unconscionable, and compounds the error of the lower courts by further thwarting the legislatively-mandated parental preference. . Contrary to the position of Justice Gonzalez, our action today does not condemn the child to the possibility of living in perpetual peril.

If Brenda’s living situation has changed for the worse, as in the exaggerated hypotheticals contrived by Justice Gonzalez, 796 S.W.2d at 173-174, there is nothing to prevent the grandparents from petitioning the court for a change in conservatorship. Tex.Fam.Code Ann. § 14.08 (Vernon 1986 and Supp.1990). The court may issue a temporary order changing the designation of managing conservator if there is a "serious, immediate question concerning the welfare of the child." Id. at § 14.08(g)(1).