In Gardner v. Gardner, 229 S.W.3d 747, 752 (Tex. App.--San Antonio 2007, no pet.), the appellant was the parent of two boys and a girl and the appellee was not the parent of one of the boys. Id. at 750.
The parties agreed on joint conservatorship in their mediated divorce and submitted only the issue of primary possession of the two boys to the trial court. Id. at 751.
On appeal, the court declined to apply the presumption found in Section 153.131 because that statute "clearly states the presumption applies only to determinations of conservatorship." Id. at 752.
The appellant in that case had accused the appellee of sexually abusing their daughter and Child Protective Services found no significant risk factors and closed the case. Id. at 753.
The appellee produced evidence that he had made dramatic changes in his life and that he provided a stable environment for the boys. Id.
The court held that the trial court had sufficient information on which to exercise its discretion in awarding primary possession to the nonparent joint managing conservator even though the boys would be separated from their sister. Id. at 753-54.