SOUTHEAST TEXAS RECORD

Six years ago, San Jacinto County District Judge Michael Mayes granted two women joint custody of twins that one bore through artificial insemination, but now that the women have split up it turns out that Mayes made a mistake and the mother retained full custody all along.

The Ninth District appeals court in Beaumont ruled Aug. 14 that Mayes lacked jurisdiction to grant Sheila Haley access to Charlena Smith's twins, Cody and Carson, after the breakup.

Mayes had ruled in Haley's favor this year by modifying a joint custody order he signed in 2002, but Ninth District judges agreed he can't modify an order he shouldn't have signed in the first place.

"The fact that parties behave as though a trial court has jurisdiction over the case does not confer jurisdiction on a court," Ninth District judges declared in an unsigned opinion.

When Haley and Smith obtained the original order in a "suit affecting parent-child relationship," or SAPCR, they lived together.

After they obtained the order, Haley bore a child by artificial insemination from the same man that fathered Smith's twins.

The two women and their three children lived together until Feb. 12.

A day after they separated, Smith moved to vacate the joint custody order.

Haley, herself an attorney, countered with a petition to modify the order. She alleged that an acquaintance of Smith used drugs and that members of Smith's family had a history of violence.

Mayes denied Smith's motion. He entered an interim order and temporary orders providing for Smith and Haley to rotate possession and access to the twins.

For Smith, attorney Jack Ogg asked the Ninth District for a writ of mandamus that would compel Mayes to vacate the original order and the orders he signed this year.

Chief Justice Steve McKeithen and Justices David Gaultney and Hollis Horton granted the writ.

Haley did not establish standing under Texas family code, they agreed.

"Because the original SAPCR order is void, the temporary orders arising out of the motion to modify the void order must be vacated," they wrote.

"The trial court shall appoint a parent as sole managing conservator, unless the court finds that the appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development," they wrote.

They quoted a prior decision holding that "the interest of parents in the care, custody and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the courts."

That decision declared a mother's rights far more precious than property rights, they wrote.

"Haley did not plead that Smith was an unfit parent or that leaving the children with Smith would significantly impair the child's physical health or emotional development," they wrote.

Christopher Beck represented Cody and Carson as court appointed guardian.