concurring and dissenting.
I ambivalently concur in points of error two, three, four and five. I vigorously dissent to points of error one and six. This is one of the rare occasions when this court is confronted with an injustice, then turns a deaf ear. Mr. Morgan filed his petition to establish his paternity when the child was less than a year old. Between the child’s birth and the hearing, Mr. Morgan had been allowed to see his son only twice, and had been denied other visitations by the mother. Mr. Morgan was agreeable to paying the amount of child support calculated by Ms. Monroe’s attorney; agreeable to paying an additional $50 per month for one-half of the outstanding medical bills, was agreeable to having the child support paid through employer withholding and agreeable to keeping the child insured and providing proof of insurance. What did Mr. Morgan get for his initiative and co-operation? He got the generous visitation of TWO HOURS PER MONTH (in the presence of Ms. Monroe), until the child turned three years old. This amounted to virtually no visitation for the *863first three years of the child’s life.1 After age three, he gets TWO SATURDAYS PER MONTH; no overnight; no holidays. But at age six, he gets “standard weekend visitation”,2 but no holidays, birthdays, or summer visitation.
My disagreement with the majority concerns (1) the quantum of evidence required to overcome the statutory presumption favoring the standard possession order once the child attained the age of three; (2) the trial court’s refusal to grant a bill of exceptions on the motion for new trial and subsequent failure to grant a new trial on the issue of possession and (3) the trial court’s failure to change the name of the child from the mother’s surname to the father’s surname.
Our standard of review is whether the trial judge abused his discretion in setting the access or visitation. Based upon the scarcity of evidence, I believe he did, both procedurally and substantively. As the majority notes, the trial judge listed several factors why Mr. Morgan’s visitation should be restricted: the age of the child, the history of Mr. Morgan, the insufficiency of testimony about Mr. Morgan’s ability to care for the child and the lack of contact with the child up to the time of trial. We are not without legislative direction on the issue of access and possession. In fact the legislature has stated:
It is the policy of this state to encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child.3
In addition, there is a rebuttable presumption that the standard possession order provides reasonable minimum possession of a child for a parent named as a posses-sory conservator or joint managing conservator; and is in the best interest of the child.4 Furthermore, if the work schedule or other special circumstances of the managing conservator, the possessory conservator, or the child, or the year-round school schedule of the child, make the standard order unworkable or inappropriate, then the court shall render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order.5 When the child is less than three years of age, the court shall render an order appropriate under the circumstances for possession. The court shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.6 Even when ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider: (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a posses-sory conservator; and (3) any other relevant factor.7
I believe the trial court abused its discretion procedurally when it abrogated its responsibility and established visitation using the verbatim terms as proposed in a letter from Ms. Monroe’s counsel to Mr. Morgan’s counsel some two weeks prior to the hearing. This letter proposed visitation terms acceptable to the Monroe family; it can fairly be described as “settlement negotiations.” Even if, after hearing evidence, the trial judge felt there were *864sufficient facts to overcome the statutory presumption, the court was to be guided by the guidelines established by the standard possession order and was required to render an order that grants periods of possession of the child as similar as possible to those provided by the standard possession order. Obviously the trial .court was guided by the desires of Ms. Monroe and her attorney. This was an abuse of discretion.
In that same vein, the order entered was substantively defective. Remember the factors used by the trial judge in fashioning the non-standard possession order: the age of the child, the history of Mr. Morgan, the insufficiency of testimony about Mr, Morgan’s ability to care for the child and the lack of contact with the child up to the time of trial. Taking them in reverse order we begin with Mr. Morgan’s lack of contact with the child up to the time of trial. Ms. Monroe admitted she denied Mr. Morgan visitation with his son and rejected an offer of child support, yet this is a factor against Mr. Morgan. Next, the court considered the insufficiency of testimony about Mr. Morgan’s ability to care for the child. This misplaces the burden and destroys the statutory presumption. It is true Mr. Morgan did not present a plethora of evidence about his child-care abilities, other than to testify he was to begin a child-care class later in the month, following the hearing and he had kept his nieces on numerous occasions. Mr. Morgan was not required to present evidence on this issue, the legislative intent and statutory presumption was there, in his favor. Thus, it became incumbent on Ms. Monroe to present evidence why the standard possession order was unworkable or inappropriate. Yet, she gave no specific evidence of lack of parenting skills by Mr. Morgan, she simply had reservations about standard visitation based upon her feeling that Mr. Morgan was not a responsible person. The majority very adeptly sets out Mr. Morgan’s faults, as testified to by Ms. Monroe, in general terms. They must do so, because there are no specifics in the record. Ms. Monroe testifies that Mr. Morgan has a temper, but provides no specifics; she testifies that Mr. Morgan is a “quitter,” but provides no specifics. There is absolutely nothing negative regarding Mr. Morgan’s past history that touches on child-rearing, baby-sitting, or interaction with children. The evidence used to justify a non-standard order is, in my opinion, no evidence; thus it was an abuse of discretion for the trial court to deviate from the standard possession order.
Assuming, for the sake of argument, there was some evidence, more than a scintilla, to justify the deviation, the order entered was made without reference to any guiding principles. The order established visitation at one hour each first and third Monday, from 7:30 to 8:80 p.m., in the presence of the mother, until the child reached age three. There was no testimony when the child ate or slept or whether this time period would provide Mr. Morgan any opportunity to “parent.” Then based solely upon the child’s age, the possession ballooned eight fold; from one hour on Monday evenings to eight hours on Saturday’s. Again, there was no evidence, other than the mother’s wishes and the proposed settlement letter, that this amount was appropriate. Presumably, Mr. Morgan will have become slightly more responsible, but not up to standard, yet. Then, not as a result of anything but the calendar, at age six, the visitation will again balloon from eight hours in a weekend period to forty-eight hours and over two nights. Again, there has to be some presumptions about quantifying Mr. Morgan’s responsibility, because there certainly was no evidence, even speculative, about what the circumstances would be at that time. Even under that speculation, Mr. Morgan is still deficient in some manner because the standard possession order is not in place; there are no holidays or summer visitation. If the trial judge had not “bought” Ms. Monroe’s acceptable possession order, logic dictates he would have *865“phased in” the various visitation schemes. For example, moving from one hour per week to three or four hours during age two. For example, moving to two days during a week-end, then two days and one night, rather than jumping from one day per week-end to two days and two nights. Based upon the facts of this case, I can only reach the conclusion that the possession order entered amounted to an abuse of discretion.
I also reach the conclusion that the failure to permit a bill of exception during the hearing on the motion for new trial and the failure to grant a new trial was an abuse of discretion. The general rule is that a trial court must permit a party to make an informal bill of exceptions. See 4M Linen and Uniform Supply Co. v. W.P. Ballard & Co., 793 S.W.2d 320, 324 (Tex.App.—Houston [1st Dist.] 1990, writ denied). “The obvious purpose behind a bill of exceptions is to put the evidence in the record so that the appellate court can determine if the trial court erred in excluding it or erred in ruling in some way materially related to the evidence.” Gray v. Gray, 971 S.W.2d 212, 218 (Tex.App.—Beaumont 1998, no writ). The majority is correct when they cite Pennington v. Brock, 841 S.W.2d 127, 131 (Tex.App.—Houston [14th Dist.] 1992, no writ), for the proposition that when a record is sufficient to apprise both the trial court and the appellate court of the nature of the evidence expected to be elicited, any error in refusing to allow a bill of exceptions is harmless. See also Gray, 971 S.W.2d at 218. Mr. Morgan’s counsel stated he wanted to present testimony from Mr. Morgan’s aunt about Mr. Morgan babysitting her children. The majority has the gall to characterize this testimony as “cumulative of other evidence with respect to ... his babysitting duties” when even the trial judge stated there was an insufficiency of testimony about Mr. Morgan’s ability to care for the child. The majority goes to great lengths to discuss why the “newly discovered evidence” criteria should be adhered to in this case, pointing out the serious nature of the evidence in C. v. C, 534 S.W.2d 359, 362 (Tex.Civ.App.—Dallas 1976, writ dism’d w.o.j.). I believe the rule is even more relaxed in child custody and possession cases. Several cases have held that the ordinary rules restricting the granting of a new trial for newly discovered evidence should not be applied rigidly in child custody proceedings. In such cases the children are the primary parties in interest, and they are rarely represented by counsel. Counsel for the contending parents cannot always be relied upon to protect the interests of the children because the parents often attempt to promote their own interests and vindicate their own asserted rights rather than to protect the children’s interests. See Anderson v. Martin, 257 S.W.2d 347, 353 (Tex.Civ.App.—Amarillo 1953, writ refd n.r.e.). Consequently, the court’s duty to protect the children’s interests should not be limited by technical rules. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967); Brillhart v. Brillhart, 176 S.W.2d 229, 230 (Tex.Civ.App.—Amarillo 1943, writ ref'd w.o.m.). 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. Cf. Sparkman v. Sparkman, 217 Ala. 41, 114 So. 580, 581 (1927); Person v. Person, 172 La. 740, 135 So. 225, 227 (1931); W.E. Shipley, Annotation, Material Facts Existing at the Tim.e of Rendition of Decree of Divorce but not Presented to Court, as Ground for Modification of Provision as to Custody of Child, 9 A.L.R.2d 623, 634 (1950). See Hefley v. Hefley, 859 S.W.2d 120, 124-125(Tex.App.—Tyler 1993, no writ).
I believe public policy mandates these rules be relaxed in child custody cases. A court should not, in such a case as this, refuse to consider the evidence on the ground that the party tendering it had not been diligent in presenting it. To permit the future of the children to be determined by lack of diligence of one of the parties *866would ignore the court’s primary responsibility to protect the children and make its decision in their best interests. I would sustain point of error number six and order a new trial on the issue of access allowed Mr. Morgan.
I also dissent to the overruling of point of error seven, regarding the surname of the child. In the context of preserving the father’s surname, our highest court has stated, “[t]he courts have generally recognized that a protesting father has a pro-tectable interest in having his child bear his surname, and they will exercise the power to change the name reluctantly and only where the substantial welfare of the child requires the change.” Newman v. King, 433 S.W.2d 420, 423 (Tex.1968). In that same context, another court stated, “My preserving the child’s use of his legal name, the courts are protecting the relationship between the father and child and promoting the affiliation of the child with the father’s family.” Brown v. Carroll, 683 S.W.2d 61, 63 (Tex.App.—Tyler 1984, no writ)(citing Bennett v. Northcutt, 544 S.W.2d 703 (Tex.Civ.App.—Dallas 1976, no writ)).
I acknowledge this is the converse situation; a name change to the father’s surname, but the same logic should apply. Furthermore, in a very pragmatic sense, it is more likely than not that this young mother will marry and thus the child will have neither his mother s nor his father s name,8 but the name of his maternal grandparents.9 To change the child’s name to that of his father’s, now at age three, seems, to me, to be the least confusing and in the child’s best interest.10 Therefore, I would hold the trial court abused its discretion in refusing to change the child’s name.
In summary, this is a difficult case. It is never easy to say a trial judge abused his discretion in matters that are historically, legislatively and judicially reserved to a trial judge. However, I believe this is the situation here. The possession order here was not fashioned with the best interests of the child as the paramount concern nor does it establish a workable order that fosters the father-son relationship. This possession order was a capitulation to the desires of the mother and her counsel. As an appellate court, we have failed to correct an injustice. I can only hope the father and son develop the proper bonding and proper relationship despite two courts’ attempt to thwart that goal.
. Mr. Morgan does not complain about this; it was moot by the time the appeal was heard.
. Tex. Fam.Code Ann. § 153.312(a)(1) (Vernon Supp.2000).
. Tex Fam.Code Ann. § 153.251(b) (Vernon 1996).
. Tex. Fam.Code Ann. § 153.252 (Vernon 1996).
. Tex. Fam.Code Ann. § 153.253 (Vernon 1996).
. Tex. Fam.Code Ann. § 153.254 (Vernon 1996).
. Tex. Fam.Code Ann. § 153.256 (Vernon 1996).
. This scenario was presented to Ms. Monroe in a question by Mr. Morgan’s attorney.
. This is not to minimize the love and support these grandparents have given the child.
.There was no expert evidence on this issue, on the "wishes” and opinions of the interested parties.