Ex Parte Robertson ( 1982 )

I agree that the writ is due to be denied. Even though the trial judge did consider "the natural relationship of mother and daughter and the intimate benefits that a daughter of tender years can derive from the relationship," I am not convinced that this Court should review the Court of Civil Appeals, especially since that court, after a review of the record, determined that the judgment of the trial court was based upon a totality of circumstances, including the sex and age of the child.

The Court of Civil Appeals found:

"While we recognize the validity of appellant's contention regarding the unconstitutionality of the ``tender years' presumption, we do not find that the court's statement concerning the mother-daughter relationship in fact constitutes an improper reliance on that doctrine."

In view of the fact that the Court of Civil Appeals determined, after a review of the record, that the trial court did not rely upon the tender years presumption in its award of custody, I agree that the writ can be denied.