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| | Based on Voluntary Relinquishment of Child for More Than Six Months
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Two-Part Test
The court may modify an order that designates a sole managing conservator if:
- The sole managing conservator has voluntarily relinquished possession and control of the child for a period of more than six months; and
- The modification is in the child's best interest.
The petitioner need not be the person who has de facto custody of the child; the managing conservator must simply have voluntarily relinquished possession and control of the child to another.
Establishing Voluntary Relinquishment
Voluntary relinquishment means an affirmative agreement to give up the child. The agreement need not be formal and may be evidenced by conduct that effectively permitted the care and custody of the child to be taken over by another party, such as leaving the child with a grandparent while the parent is away at school. A managing conservator who leaves a child in another's custody may have voluntarily relinquished the child even though the managing conservator continues to visit and have contact with the child.
NOTE: Voluntary relinquishment, for modification of conservatorship, requires a lesser showing than that required to show voluntary abandonment of a child to involuntarily terminate parental rights.
Establishing Best Interest
The child's best interest has been defined as the environment that will have the most desirable or favorable effect on the child:
- The child's emotional and physical needs.
- The parenting ability of persons seeking to be named managing conservator.
- The plans and outside resources available to persons seeking to be named managing conservator.
- The stability of the homes of the persons seeking to be named managing conservator.
- The child's desires.
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