Like many little children with separated parents, Ann spent a little over half of her time with her biological mother, and nearly the other half with her biological father, Chris.
That changed two years ago when Ann’s mother was killed in a car accident.
Since then, she has been living primarily with her dad. But Ann, now five years old, has also been caught up in the middle of a custody battle between her father and her mother’s fiancé.
That dispute has now been brought to the Texas Supreme Court, where arguments were heard virtually on Wednesday morning.
Prior to the car accident, the fiancé — referred to as J.D. throughout the court proceedings — purportedly had been living with the mother and taking care of Ann on-and-off during possession times for about six months.
After the tragedy, Ann’s maternal grandparents filed a petition to be named joint managing conservators.
Chris subsequently filed to strike their petition on the basis of no standing, and shortly after, J.D. filed a similar petition as the grandparents to be named joint managing conservator.
An appellate court blocked the grandparents’ petition but allowed J.D.’s to proceed, citing the Texas Supreme Court in their narrow 5-4 decision of In the Interest of H.S. (2018).
In that opinion, the court concluded that the Texas Family Code “recognizes that a narrow class of nonparents, who have served in a parent-like role to a child over an extended period of time, may come to court and seek to preserve that relationship, over a parent’s objections.”
Following the order from the appellate court, the trial court then granted J.D. joint managing conservatorship of Ann.
Chris brought that decision to the Fort Worth Court of Appeals, which denied it without comment, and then Chris brought it further up to the state supreme court.
The fact that Chris is a “fit parent” has not been disputed by any party — neither J.D. nor the grandparents.
Support from Third Parties
Though the case has very different circumstances, Chris has been supported by many of the same groups that supported the Pardo family when their son was removed by Child Protective Services (CPS) without disclosing the allegations against them.
The Texas Public Policy Foundation (TPPF), the Texas Home School Coalition (THSC), the Parental Rights Foundation, the Alliance Defending Freedom, A Voice for Choice Advocacy, the office of Texas Attorney General Ken Paxton, and Texas Values have all submitted amicus briefs supporting Chris’ parental rights.
In addition to submitting a brief, TPPF delivered an oral argument before the Texas Supreme Court.
“It’s hard to imagine that a court of law would ever have to decide that a perfectly-fit father does not have the right to raise his own little girl, yet that’s exactly what’s at stake,” said Jeremy Newman, director of public policy with THSC, in a press release.
“If this case goes the wrong way,” he continued, “it could set a terrifying precedent in which courts in the future don’t have to favor parents in custody battles. Anyone, regardless of family status, could lay claim to a child.”
The State Bar of Texas Family Law Council also submitted an amicus brief which, while noting that they are not “advocat[ing] for any party,” contended that the father’s request should be denied because of their interpretation of state law.
One of the central decisions cited throughout the proceedings has been the Supreme Court case of Troxel v. Granville (2000), which struck down a law in Washington state that allowed non-parents to petition courts for visitation rights despite parental objections.
The case focused specifically on grandparents trying to acquire visitation rights.
In the 6-3 decision, the Supreme Court emphasized that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
Following Troxel, the Texas legislature amended parts of the Family Law to comply with the ruling and codify parental presumption.
The understanding of that parental presumption is the focus of the court battle presently before the Texas Supreme Court.
Michelle O’Neil, an attorney representing J.D., argued that parental presumption was just one of many aspects that trial courts should weigh.
“The trial court considers many, many, many factors. But what we cannot do” said O’Neil, “is prioritize the right of the parent over the right of the child. Those are two competing constitutional issues. […] Texas Family Code says that the best interest of the child always outweighs all of those other factors.”
As Chief Justice Nathan Hecht noted, the opposing view is that “the best interest of the child is in being cared for by the fit parent.”
But O’Neil also argued that parental presumption does not apply to this case since it is a modification of the original custody arrangement.
“The precedent before us has held that the parental presumption is determined in the original suit between the two parents and that the parental presumption does not carry forward into the modification suit, regardless of the privity of the parties,” said O’Neil.
“If the original case is between the two parents, and one parent dies, why isn’t the original case mooted […] such that we should think of this new case as an original case? ” asked Justice Jimmy Blacklock.
“I think that there is precedent on that question […] that says it is mooted maybe as to immediate possession but not as to the court’s continuing jurisdiction over the best interest of the child,” replied O’Neil.
Supporters of Chris argue that the parental presumption as outlined in Troxel should apply equally to this case, which involves not simply another relative claiming custody, but an unrelated person who spent a short amount of time with the child.
“This case is about making it clear that the first prong of a court’s best interest inquiry must be the fit parent presumption, and if a parent is fit, the inquiry is over,” said Holly Draper, Chris’s attorney.
An opinion article from TPPF’s Robert Henneke and Andrew Brown emphasizes the same point.
“Even if the lower court believed that he should have made different arrangements for his daughter to spend time with her grandparents — or even her mother’s boyfriend — overruling Chris’s judgment about what is in his daughter’s best interests represents an unconstitutional violation of his rights as a father and his daughter’s right to a stable relationship with her dad,” they write.
In his dissenting opinion for H.S., Blacklock argued that “for a non-parent to achieve the ‘actual care, control, and possession’ required for standing, the child’s parents must first give up ‘actual care, control, and possession.’”
With the current case, the Texas Supreme Court could issue a ruling to move closer to Blacklock’s proposed standard by reinforcing parental presumption.
But given the narrow decision on H.S., it’s unclear which direction the court might sway. Depending on the outcome, clarifying parental presumption in Texas family law may be a task that advocacy groups bring to the state lawmakers in the next legislative session.
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Daniel Friend is a reporter for The Texan. He participated in a Great Books program at Azusa Pacific University and graduated in 2019 with a degree in Political Science. He has studied C.S. Lewis’s science fiction trilogy and in his spare time you might find him writing his own novel partly inspired by the series.