I respectfully dissent. While I recognize the well-established principle that the trial court is accorded wide latitude in custody matters, the authorities cited by the majority are primarily oriented to instances where the appellant urges that a different custody order should have been entered. My objection is not that the trial court'sdecision on custody constituted an abuse of discretion, but that the procedures employed by the trial court were flawed.
The testimony of the family therapist raised the possibility that the child had been sexually abused. The psychologist appointed by the court to evaluate the charges was unable to state an opinion in reasonable psychological probability because of his inability to interview appellee's live-in companion. Rather than employing the power to obtain the necessary information, the trial court rendered the custody order on the basis of incomplete evidence.
In the determination of managing conservatorship, the best interest of the child is the paramount consideration. TEX.FAM. CODE § 14.07(a) (Vernon 1975); Green v.Remling, 608 S.W.2d 905 (Tex. 1980); Hamann v.Morentin, 660 S.W.2d 645, 646 (Tex.App.-Fort Worth 1983, no writ). In determining the best interest of the child, the trial court has the right and duty to make a diligent inquiry into all the circumstances relevant to the disposition of the child. Conley v. St. Jacques, 110 S.W.2d 1238,1242 (Tex.Civ.App.-Amarillo 1937, writ dism'd).
In C ____ v. C ____, 534 S.W.2d 359 (Tex.Civ.App. — Dallas 1976, no writ), the trial court overruled a motion for new trial, despite affidavits alleging that the managing conservator had abused the children. This court held that the trial court had *Page 700 abused its discretion in failing to grant a new trial notwithstanding a lack of diligence on the part of the movant's trial attorney. The court stated:
C ____ v. C ____, 534 S.W.2d at 361. To render a decision based on incomplete evidence impairs the court's ability to protect the child's best interest. Id. at 362.Pertinent facts which may directly affect the interests of the children should be heard and considered by the trial court regardless of the lack of diligence of the parties in their presentation of information to the court.
While we agree that the trial court could not directly compel the companion's presence at an interview, other channels were available. The trial court could order that the friend appear for an evaluation and could take adverse inferences from a demonstration of unwillingness or inability to comply with the order. The trial court could take any temporary orders necessary to protect the safety and welfare of the child, including the appointment of a temporary conservator. TEX.FAM. CODE § 11.11 (Vernon Supp. 1986). In addition, the friend could be summoned as a witness, either in deposition or before the court if he refused to participate in the less formal evaluation procedures suggested. In closely contested custody cases, the appointment of a guardian ad litem helps insure that the best interest of the child is advanced.Turner v. Lutz, 654 S.W.2d 57 (Tex.App.-Austin 1983, no writ); Sisk v. Duck, 593 S.W.2d 416 (Tex.Civ.App. — Houston [14th Dist.] 1980, writ ref'd n.r.e.).
The majority refers to evidence tending to refute the sexual abuse allegations and concludes that the trial court could have properly concluded that the charges were insubstantial. It is not my contention, however, that the trial court made an incorrect decision based on the evidence before it at thetime. Rather the trial court's error consisted in making his decision without attempting to obtain evidence that might have resolved the matter with greater certainty — the certainty we should insist upon in determining the disposition of a child.
True, custody issues are rarely free from doubt and the most rigorous procedures will often fail to resolve doubt. We should hold, however, that when a serious issue affecting a child's welfare arises in a suit affecting the parent-child relationship, and when it appears that further evidence may resolve that issue, and when the trial court has the means to obtain the evidence, the trial court abuses its discretion in determining custody without obtaining and considering that evidence.
The cause should be remanded to the trial court for further proceedings.
GUILLOT, J., joins in the dissent.