dissenting.
[Courts] are under the constraints imposed by the judicial function in our democratic society.... [T]he junction in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.... A judge must not rewrite a statute, neither to enlarge nor to contract it.
—Felix Frankfurter1
This case requires us to construe the modification provisions of chapter 156 of the family code. The questions of law we are called upon to decide are: 1) whether a conservatorship order is a valid custodial order that is subject to modification under chapter 156 of the family code after the death of the managing conservator, and 2) whether the legislature intended by enacting chapter 156 that, when a managing conservator parent dies, the surviving parent not have the benefit of the parental presumption in a conservatorship suit brought by a nonparent. The majority answers these questions without resort to established rules of statutory construction. Instead, the majority relies on facts that have no bearing on the legal questions before us, legislative intent that has no support in the language of the statutes that we are asked to interpret, and a novel legal fiction that gives effect to a prior custodial order that otherwise has no validity.
It is clear from reading the majority opinion that the members of the majority believe that it is in the best interest of P.D.M. and K.E.M. to remain with the grandmother in Krum, Texas. As the majority points out, the children have lived near or with their grandmother in Krum “for over thirteen years”; their father has had “only sporadic contact with the children”; the father failed to make “some” of *466his child support payments; and the children have expressed their desire to have their grandmother appointed primary conservator. The grandmother, however, cannot overcome the parental presumption that the best interest of the children is to have their father appointed managing conservator if the literal language of the family code is followed and applied to the record before us. The grandmother has a chance to succeed only if the majority characterizes her original suit requesting managing conservatorship as a suit to “change custody” and ignores the fact that there are no live custody provisions in the prior order to change. By holding that the grandmother’s original suit is governed by the modification provisions of chapter 156 on the basis of this rationale, the majority has applied the statute in a manner the legislature did not intend.
As appellate judges deciding questions of statutory construction, we should not be substituting judicial intent for legislative intent. While the ramifications of interpreting the modification provisions of chapter 156 as the legislature intended may personally trouble us under the facts of this case, our role as judges requires that we put aside our own personal views of what we might like the statute to mean, and impartially interpret and apply the law as written by the legislature.2
Because the majority opinion does not interpret and apply chapter 156 of the family code as written by the legislature, does not follow Texas Supreme Court precedent, and does not comport with traditional notions of parental rights, we dissent.
The Majority Mischaracterizes this “Original Suit” Requesting Managing Conservatorship as a Modification Suit by Misinterpreting Chapters 153 and 156 of the Family Code
The grandmother instituted this suit by filing an “Original Petition in Suit Affecting the Parent-Child Relationship” to request that she be appointed managing conservator of P.D.M. and K.E.M. Her standing to file the suit is governed by the general standing provisions of section 102.003(a)(ll) of the family code which, in pertinent part, provide as follows:
(a) An original suit may be filed at any time by:
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(11) a person with whom the child and the child’s ... managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s ... managing conservator, or parent is deceased at the time of the filing of the petition [.]3
Chapter 153 of the family code governs all original suits to determine conservator-ship and possession of a child.4 As the chapter’s title suggests, the provisions of chapter 153 outline the procedures and elements of proof necessary to determine a party’s rights to “Conservatorship, Possession, and Access” to a child.5
When we construe a statute, our primary objective should be to give effect to *467the legislature’s intent as expressed through the words of the statute.6 The general standing provisions of sections 102.003(a)(ll) and 102.004 express a clear legislative intent that suits requesting managing conservatorship filed by a non-parent against a surviving parent after the death of the managing conservator be treated as “original suits” governed by chapter 158 of the family code. None of chapter 153’s wording indicates the legislature intended that its original suit provisions be resorted to only once, as the majority mistakenly concludes, or that if applied once, the provisions have no further applicability to any subsequent con-servatorship suit that may possibly be filed regarding the same child. The only time a suit affecting conservatorship, possession, and access to a child is not governed by chapter 153 is when those rights and duties are governed by an order “subject to modification” under chapter 156.7
Chapter 156 of the family code, which is entitled “Modification,” governs suits to modify orders establishing conservator-ship, possession, and child support.8 This chapter authorizes a party “affected by an order” to file a suit to modify the order.9 The clearly expressed purpose and intent of chapter 156 is to allow modification of “an order that provides for the conserva-torship, support, or possession of and access to a child,” when a party affected by the order demonstrates that modification of the order would be in the best interest of the child.10 Thus, the modification procedures of chapter 156 apply exclusively to orders that affect a party’s rights to con-servatorship, support, possession of and access to a child. Only an order that affects one or more of these rights of a party is “subject to modification” under chapter 156.11
In this case, no child, conservator, or other party is “affected by” the prior order because the custody and support provisions of the order lost their legal effectiveness when the managing conservator died.12 Because the provisions of the now invalid order no longer affect anyone, the order is not “subject to modification” under chapter 156.13
*468Contrary to the majority opinion, there is nothing in the language of chapter 153 or chapter 156 that expresses a legislative intent that an “original suit” filed after a managing conservator’s death by a nonpar-ent with standing to bring such a suit under section 102.003(a)(ll) be controlled by the modification procedures of chapter 156 merely because it is the second custody suit involving the same children, or because the suit affects the children’s “living arrangements.” In fact, when all relevant code provisions are read together, it is clear the legislature contemplated that all such original suits be governed by chapter 153. Nor does the wording of chapter 156 evidence a legislative intent that its modification procedures apply to an invalid order that has lost its legal effectiveness as a result of a managing conservator’s death. By applying the modification provisions of chapter 156 to such situations, the members of the majority are enlarging the statute’s scope beyond that contemplated by the legislature when the statute was written, a function exclusively reserved for the legislature.14
The majority reasons that because a person who has standing to file an original suit requesting managing conservatorship after the death of a managing conservator under section 102.003(a)(ll) also has standing to file a suit to modify,15 “a person like Grandmother may file a modification suit.”16 This analysis, however, merely begs the question of whether this is an original suit governed by chapter 153 or a suit to modify controlled by chapter 156. Whether the grandmother may have standing to file a suit to modify is not an issue.
Section 102.003(a)(ll) clearly states that a person like the grandmother has standing to file an “original suit” requesting managing conservatorship upon the death of the managing conservator.17 The majority’s observation that such a person may also have standing to file a motion to modify when warranted provides absolutely no support to its decision to reject the plain meaning of the family code and hold that the instant suit filed with standing by the grandmother is not an “original suit” governed by chapter 153.
The Majority’s Proposition that the Parental Presumption is Protected in a Modification Suit is Unsupported by Chapter 156 and is Contrary to the Supreme Court’s Decision in V.L.K.
After going to great lengths to explain why they believe the parental presumption does not and should not apply to modification suits, the majority does an about-face, arguing that the family code, indeed, “favors parents over nonparents in modification suits” and effectively ensures the parental presumption is protected in a modification suit.18 Yet, nothing in the family code provisions cited by the majority supports this novel analysis. To obtain modification of a prior order, a party must prove that the circumstances of the child, conservator, or other party affected by the order have materially and substantially changed and that modification of the prior order would be in the best interest *469of the child.19 Parentage is not mentioned as a relevant factor nor is the parental presumption. The majority’s suggestion that the presumption is imbedded in these “statutory hurdles” is disingenuous. As the supreme court determined in V.L.K, the family code’s “statutory scheme” is to eliminate the parental presumption in modification suits, not protect it.20
The Majority Opinion Conflicts with the Supreme Court’s Decision in Greene v. Schuble
Not only do the members of the majority fail to follow the law as written by the legislature, they fail to honor controlling precedent of the Texas Supreme Court. In Greene, a 6-8 decision, the supreme court held that a conservatorship order is not a valid, subsisting order after the managing conservator dies.21 Rather than apply this rule of law to the facts of this case, the majority has adopted a rationale similar to that enunciated by the dissent in Greene. The dissenting justices in Greene reasoned, as the majority does here, that a conservatorship order remains subject to modification after the managing conservator dies.22 Justice C.L. Ray wrote in dissent,
Since a [prior] court order governing possession exists, the court should only entertain the [surviving parent’s] right of possession under that order. The proper course [for the children’s mother] would have been to file a motion to modify the decree, alleging the death of the managing conservator as a material change in conditions.23
This rationale, which led the dissent to conclude that a writ of habeas corpus should not lie to give the surviving parent right to immediate possession of the child, was flatly rejected by the majority of the supreme court in Greene.24 However, even Justice Ray recognized that his dissenting view “does not comport with traditional notions of parental rights,”25 — a fact the majority refuses to acknowledge about the result they have reached in this case.26
The majority, however, contends that their opinion is consistent with the majority opinion in Greene. They assert that the court in Greene “specifically contemplated that a suit for modification ... could follow the death of the managing conservator” *470and that, under Greene, a prior custody-order need not be valid and subsisting to nonetheless constitute a “prior court order” for purposes of a motion to modify.27 The majority bases this conclusion on ten words of dicta in the Greene opinion where the supreme court observed that the trial court had a mandatory duty to grant a writ of habeas corpus notwithstanding “a pending motion for modification of the pri- or court order.”28 The majority takes this dicta out of context and clearly infers too much from it.
The only issue in Greene was, as the majority points out, whether a writ of ha-beas corpus should issue to give a surviving parent immediate possession after the managing conservator dies.29 The disposi-tive common law rule on which the supreme court based its holding that a writ of habeas corpus should issue in such a ease was that, upon the death of the managing conservator, a prior conservatorship order no longer constitutes a valid, subsisting order governing conservatorship and possession.30 The only exception the court recognized to this universal rule is when the order contains “specific provisions to the contrary.”31
Contrary to the majority’s interpretation of Greene, nothing in the opinion’s language, including the words “for purposes of section 14.10 [the prior habeas statute],” indicates that the supreme court contemplated the creation of a legal fiction that would allow a prior conservatorship order without special provisions for continuing the order after the death of the managing conservator to be treated as a valid order for the purpose of characterizing a conser-vatorship suit as a suit for modification. Nor is there any suggestion in the Greene opinion that a surviving parent is required to seek modification of a prior conservator-ship order that no longer affects conserva-torship and possession of a child, merely to eliminate the former limitations the order may have placed on the surviving parent’s rights before the managing conservator’s death.32
Under Greene, the prior conservatorship order governing possession of P.D.M. and K.E.M. ended when the children’s mother died. Because there is no valid, subsisting order governing the conservatorship of the children, there is no order “subject to modification” under chapter 156 of the *471family code.33
The Majority’s Holding that this is a Modification Suit is Repugnant to Traditional Notions of Parental Rights and Defeats the Primary Objective of the Parental Presumption to Protect the Best Interest of the Child
The majority’s holding that a surviving parent is not entitled to the parental presumption in a conservatorship suit filed by a nonparent after the managing conservator dies is repugnant to traditional notions of parental rights. The majority places controlling emphasis on the children’s need for stability and reasons that this interest will be protected by trying this suit under chapter 156 because the court will not be allowed to change “the children’s living arrangements” by taking the children from the grandmother and giving them to the father, without finding the change would be a positive improvement for the children.34 There is, however, no court-ordered living arrangement for the trial court to change or modify.
Neither the father nor the grandmother in this case is managing conservator of the children, and the children were not living with the grandmother pursuant to a prior court order governing conservatorship and possession. The only prior order affecting conservatorship and possession of the children is the one that appointed the mother as managing conservator of the children. After the mother died, the only party with any lawful right to possession of the children was the father, and the source of his rights was not a court order, but, instead, derived from the natural right that exists between him and his children.
The natural parental right is a basic civil right that is among the most precious rights we possess as human beings.35 The legislature recognized this when it gave natural parents the benefit of the parental presumption in conservatorship suits and placed a higher burden on nonparents seeking to be appointed conservators.36 This presumption does not, and should not, exist in modification suits due to the policy concern about the children’s need for stability and the need to prevent constant litigation in child custody cases.37 But, as important as these policy concerns are when an attempt is made to modify a court-ordered custody arrangement that affects a child’s life, they do not come into play when no valid court-ordered arrangement exists and the instability in the child’s life results from circumstances beyond the parties’ and the court’s control, such as when the managing conservator dies. In such instances, the rights of the surviving parent should be a paramount concern and the presumption that the best interest of the child would be served by awarding custody to the surviving parent should apply. None of the authority the majority relies on for the opposite proposition applies to this situation.
The majority cites a parental termination case, In re C.H.,38 for the proposition that the physical and emotional interests of a child should not be sacrificed to preserve parental rights. The primary objective of the parental presumption is to *472protect the best interest of the child, however, not preserve parental rights.39 Under chapter 158, a nonparent may rebut the presumption that the best interest of the child is served by awarding custody to the parent by showing that the child’s physical or emotional well-being would be significantly impaired by placing the child with the parent.40 Thus, the majority’s concern that a child’s physical and emotional interests are not served by applying the presumption in a conservatorship suit following the death of the managing conservator is wholly unfounded.
The Majority Misapplies the Doctrine of Res Judicata
The majority erroneously contends that res judicata bars appointment of the father as managing conservator on the basis of the parental presumption because the father’s appointment as managing conservator “has already determined to be not in the best interest of the children” in the prior default divorce proceeding. There is, however, no evidence in the record of this case to support the majority’s claim that appointment of the father as managing conservator was determined not to be in the children’s best interest. The only judicial determination made by the trial court in the prior default divorce proceeding regarding best interest was that appointment of the mother as managing conservator was in the best interest of the children. This finding would only have res judicata effect, if at all, in a subsequent suit between the mother and the father.41 It does not apply to bar the father from relying on the parental presumption that the best interest of his children will be served by appointing him managing conservator in an original suit filed after the mother’s death by a person who was not a party to the prior proceeding.
The Majority Opinion Will Lead to Absurd Results
The majority’s holding that a conserva-torship order remains “subject to modification” after the death of the managing conservator will lead to absurd and troublesome results. The following scenarios Alústrate some of those results:
• In this case, the trial court issued a writ of habeas corpus awarding the father immediate possession of P.D.M. and K.E.M. To accomplish this, the majority agrees that the trial court was required to find that the prior conservatorship order is no longer a valid, subsisting order.42 Yet, while the majority concludes that the trial court was correct in issuing the writ of habeas corpus, they now require the same trial court to effectively reverse itself, treat the invalid order as if it were valid by determining on the basis of a legal fiction that the parties are “affected by” the order (even though they are not), and try the ease as a suit to modify an invalid order that in reality affects no one.
• If, as the majority holds, a prior con-servatorship order becomes invalid on the death of the managing conservator “only for purposes of a habeas proceeding,” a surviving parent who assumes possession of her children without instituting habeas proceedings may be held *473in contempt for violating the prior order. Only after the prior order is changed through a subsequent modification proceeding would the surviving parent’s rights and duties be established and the parent be assured that she was not subject to being held in contempt of the prior court order.43
• If, as the majority holds, a prior con-servatorship order is “subject to modification” even when it is not valid and no party is “affected by” it, then an order that has been set aside or vacated by subsequent court order would qualify as an order “subject to modification” and a suit for modification may be filed by a nonparent at any time on the basis of the vacated order.
• If, as the majority holds, a prior con-servatorship order is always valid for modification purposes notwithstanding the occurrence of a subsequent event that renders it invalid, a formerly divorced parent who reconciles and remarries the managing conservator of a child would be deprived of the parental presumption if a nonparent sought custody of the child after the other parent died.
Although these and other equally vexatious results are likely to arise in the wake of the majority opinion, the majority cavalierly dismisses them as “hypothetical scenarios” that are “not before us.” 44
Dohrn is Consistent with V.L.K. and Should Be Followed
Finally, the majority concludes that the Corpus Christi Court of Appeals’ decision in Dohrn v. Delgado,45 which I would follow, “cannot be reconciled with” the supreme court’s decision in V.L.K V.L.K is inapposite, however, and can be easily reconciled with Dohrn and the result that would be reached in this case if the majority followed Dohrn.
In V.L.K, the child’s aunt and uncle sought to modify a valid and subsisting conservatorship order that named the child’s grandmother as managing conservator46 The grandmother was alive at the time the motion to modify was filed, and both she and the child’s mother, who was the possessory conservator under the order, countered the aunt and uncle’s motion with a request that the order be modified to name the mother as the sole managing conservator. None of the parties in V.L.K. contended, as the father does in this case, that the order they sought to modify was a nullity or that their suit was not a modification proceeding governed by chapter 156 of the family code.47 The only issue in V.L.K was whether the parental presumption applies in a bona fide modification proceeding.48
The circumstances in Dohrn were entirely different than those in V.L.K. In Dohrn, the mother was appointed joint managing conservator with the right of primary possession.49 After she died, the maternal grandfather took possession of the children and filed suit asking that he be appointed joint managing conservator with primary possession of the children.50 The trial court entered temporary orders restraining the children’s father from taking possession of the children, and the *474father petitioned the Corpus Christi Court of Appeals for a writ of mandamus to have the trial court’s orders set aside.51 Unlike V.L.K, there was no valid court order governing conservatorship and possession of the children when conservatorship proceedings were filed in Dohm; the prior conservatorship order ended on the death of the mother.52 Consequently, there was no order for the trial court to modify in Dohm, as there was in V.L.K. Thus, as the Corpus Christi court recognized, the circumstances that existed at the time the parties’ rights to the children were litigated in Dohm were virtually the same as those that exist when there has been no prior court order governing conservator-ship and possession of the children and custody is being litigated for the first time.53 The supreme court’s holding in V.L.K. that the parental presumption is not available in a modification proceeding clearly has no application to a case like Dohm.
To sum up and reiterate, we would hold that the prior conservatorship order governing the possessory rights to P.D.M. and K.E.M. no longer constituted a valid, subsisting order after the death of their mother.54 Because the prior order in this case is no longer a valid, subsisting order governing conservatorship, possession of, or access to the children, we would further hold that it is not an order “subject to modification” under chapter 156 of the family code. Instead, we would hold that this is an original suit to establish managing conservatorship governed by the provisions of chapter 153 of the family code and that the trial court correctly applied the parental presumption in this case.
The Trial Court’s No-Evidence Summary Judgment Should Be Affirmed
Having concluded that the parental presumption was correctly applied by the trial court, the next issue to decide would be whether the trial court erred in granting the father’s no-evidence summary judgment on the basis of the presumption. To overcome the parental presumption in the father’s favor, the grandmother had the burden to show that appointment of the father as sole managing conservator would “significantly impair the child[ren]’s physical health or emotional development.”55 In her response to the father’s no-evidence motion, however, the grandmother merely argued that she does not have the burden of showing significant impairment because the parental presumption is inapplicable in this case. She did not “produce” or “point out” any summary judgment evidence as required by Rule 166a(i) to raise a fact issue on the question of whether appointing the father as sole managing conservator would significantly impair the children’s physical health or well-being.56 Because the parental pre*475sumption favoring the father stood unre-butted by the grandmother, we would hold that the trial court did not err in granting the father’s no-evidence motion for summary judgment on that basis.57
For all of the reasons stated above, we dissent.
. Record of the Association of the Bar of the City of New York 213 (1947), reprinted in Courts. Judges, and Politics 414 (Walter F. Murphy & C. Herman Pritchett, eds., 2d ed.1974).
. In re Doe, 19 S.W.3d 346, 365 (Tex.2000) (Gonzales, J., concurring).
. Tex. Fam.Code Ann. § 102.003(a)(ll) (Vernon 2002) (emphasis supplied). In addition to this standing provision, the grandmother may have filed an "original suit requesting managing conservatorship" if the father, as "the surviving parent,” filed the petition on the grandmother’s behalf or consented to the suit. Id.§ 102.004.
. Id. ch. 153.
. Id.
. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.1997).
. Tex Fam.Code Ann. § 156.001 (defining order "subject to modification” as an order that provides for the conservatorship, support, or possession of and access to a child and that affects a party).
. Id. ch. 156.
. Id. § 156.002.
. Id. §§ 156.001-.002.
. Id.
. Greene v. Schuble, 654 S.W.2d 436, 437-38 (Tex.1983). The majority’s conclusory statement that the father and children "are parties affected by the prior order,” is not supported by the record, the family code, or controlling case law. Maj. Op. at 456 n. 1. Even the grandmother recognized when she filed suit that the prior order governing conservator-ship and support no longer had any effect and could not be enforced as a valid order. In her original petition, the grandmother requested that the trial court enter temporary custody and support orders pending the outcome of the suit. The trial court entered a temporary child support order five months later. This new temporary support order would have been unnecessary if the terms of the prior order were still valid and enforceable, and, therefore, subject to modification.
. The invalid order may be vacated and set aside, but such an action would not be governed by the "modification” provisions of chapter 156. By requiring the trial court to modify the invalid order, the majority is requiring the trial court to perform a useless act. The fact that the father and children requested that the order be modified does not, as the majority suggests, determine the nature of this suit or the relief the trial court has the authority to grant. Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999).
. Barrett v. Indiana, 229 U.S. 26, 30, 33 S.Ct. 692, 693, 57 L.Ed. 1050 (1913).
. See Tex. Fam.Code Ann. § 156.002(b) (“A person ... who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification....”).
. Maj. Op. at 458-59.
. Id. § 102.003(a)(ll).
. Maj. Op. at 463.
. Tex Fam.Code Ann. § 156.101(1).
. See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).
. 654 S.W.2d at 437-38.
. Id. at 439 (Ray, J., dissenting).
. Id.
. Id. at 437-38.
. Id. at 440 (Ray, J., dissenting). The phrase "traditional notions of parental rights” derives its meaning from the multitude of state and federal decisions in which our highest courts have observed that the natural right existing between parents and their children is of constitutional dimension. E.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972); Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). This natural parental right has been characterized as "essential,” a "basic civil right!] of man,” and "far more precious ... than property rights.” Stanley, 405 U.S. at 651, 92 S.Ct. at 1212; see Holick, 685 S.W.2d at 20.
.The majority feigns deference to traditional notions of parental rights by pointing out that they agree that the father was entitled to obtain immediate possession of the children through the issuance of a writ of habeas corpus. Maj. Op. at 460. Parental rights, however, involve more than mere possession of a child. See Tex Fam.Code Ann. § 151.001 (listing rights and duties of parents); see also Stanley, 405 U.S. at 651, 92 S.Ct. at 1212 (recognizing that the right to raise, care for, and nurture a child is of same constitutional dimension as the right to custody).
. Maj. Op. at 460. While the majority concedes that the prior order in this case is no longer a valid, subsisting order governing conservatorship and possession of the children, they contend that because it was valid in the past it is always subject to modification under chapter 156. Id. at 460.
. Maj. Op. at 460 (quoting Greene, 654 S.W.2d at 438).
. Greene, 654 S.W.2d at 437.
. Id. at 437-38.
. Id. The majority’s suggestion that we believe all conservatorship suits filed after the death of the managing conservator are governed by chapter 153 is mistaken. Certainly, there are instances when a prior order would be subject to modification after the managing conservator's death. As the supreme court in Greene recognized, one such instance is when the prior order contains provisions for its continued validity such as the designation of a successor managing conservator. In such an instance, a suit requesting managing conser-vatorship would clearly be governed by the modification provisions of chapter 156.
.At most, the statement in Greene about "a pending motion for modification” merely demonstrates that the court recognized that modification proceedings were pending in that case, and that, without discussing the merits of the pending motion to modify, the court intended to make clear that the pending modification proceedings did not preclude the surviving parent from obtaining immediate possession of a child in the habeas corpus proceeding.
. See Tex. Fam.Code Ann. § 156.002(a) (modification provisions apply only when a party is "affected by” an order).
. Maj. Op. at 465.
. Stanley, 405 U.S. at 651, 92 S.Ct. at 1212; Holick, 685 S.W.2d at 20.
. V.L.K., 24 S.W.3d at 343.
. Id.
.89 S.W.3d 17 (Tex.2002).
. Tex. Fam.Code Ann. § 153.131(a); see also V.L.K., 24 S.W.3d at 341 ("The presumption that the best interest of the child is served by awarding custody to the parent is deeply embedded in Texas law.").
. Tex Fam.Code Ann. § 153.131(a).
. See generally Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627 (Tex. 1992).
. Maj. Op. at 460-61; see Greene, 654 S.W.2d at 437-38.
. See Tex Fam.Code Ann. § 157.376(a)(l)-(2).
. Maj. Op. at 463.
. 941 S.W.2d 244 (Tex.App.-Coipus Christi 1996, orig. proceeding).
. V.L.K., 24 S.W.3d at 340.
. Id. at 340-41.
. Id.
. Dohrn, 941 S.W.2d at 245.
. Id.
. Id. at 246-47.
. See Greene, 654 S.W.2d at 437-38.
. Dohm, 941 S.W.2d at 247-48.
. As a result, all rights to possession of the children vested in the father, as a matter of law, subject only to the temporary orders the trial court issued under chapter 105 of the family code. Greene, 654 S.W.2d at 438; see Tex Fam.Code Ann. § 157.376(a)(l)-(2).
. Tex Fam.Code. Ann § 153.131
. Tex.R. Civ. P. 166a(i) & cmts.; see Simplified Telesys, Inc. v. Live Oak Telecom, L.L.C., 68 S.W.3d 688, 691-92 (Tex.App.-Austin 2000, pet. denied); see also Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.2002); Walton v. City of Midland, 24 S.W.3d 853, 858 (Tex.App.-El Paso 2000, no pet.); Steihkamp v. Caremark, 3 S.W.3d 191, 194-95 (Tex.App.-El Paso 1999, pet. denied).
Without addressing whether the hearsay testimony of the grandmother quoted in the majority opinion about K.E.M.’s desire to live with her would have been legally sufficient to *475create a fact issue on the question of significant impairment, it is important to note that none of this testimony was pointed out by the grandmother in response to the father’s no-evidence motion.
. See Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex.1994); Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.-Fort Worth 1999, pet. denied); Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).