Chelsea Thurman Law Offices of Chelsea Thurman Adjunct Professor, UNT Dallas College of Law
ISSUE 10 | FALL 2021 | FAMILY LAW MATTERS II |
I am a grandparent who has taken care of my grandchild for eleven months. My daughter has only seen her child sporadically and told another family member that she is willing to give up custody. What rights do I have?
I was engaged to and lived with someone for four years and became very close to their child, who, at one point, called me dad. The mother passed away and I still want to have the child for two weekends a month to go camping like we used to—Can I seek possession and custody?
These questions and more are common within the realm of family law and can be difficult to navigate if you are not the child’s biological parent but have significant involvement in their life. It should come as no surprise that within the last sixty years, what was once defined as the traditional family has undergone many significant changes. Non-marital cohabitation and non-marital coupling, as well as blended families, are unique family structures that are likely to remain fluid throughout the child’s life. Because of this ever-changing dynamic, courts have had to address certain challenges, particularly when it comes to non-parents seeking child custody. A Pew Research Center Study shows that around twenty-four percent of children under the age of eighteen reside in single parent households.¹ Because of this, many single parents rely on outside help—often from grandparents and close family members—for assistance with child rearing. Texas family law is governed by the Texas Family Code where the main concern is the “best interest of the child.”² The law recognizes that in many households, grandparents and other relatives undertake duties of a parental nature and the Texas Family Code provides a roadmap for non-parents seeking custody.
Non-Parent Rights The Texas Family Code explains that for a non-parent to bring a custody action, the non-parent must have standing, which simply means they must have the right to file a lawsuit. A non-parent can establish standing in three ways. First, a non-parent can show standing if that person had care, control, and possession of the child for at least six months.³ Second, the Code speaks directly to grandparents by saying that in addition to general standing as mentioned above, a grandparent or other relative of the child related within the third degree of consanguinity (e.g., grandparents, siblings, aunts, or uncles)⁴ can file a lawsuit if there is significant impairment of the child’s physical health and emotional development in their present situation. Third, standing is established where there is mutual consent from both parents to the non-parent custody suit.⁵ Once standing has been established, the non-parent can petition the court for specific relief.
The Fit Parent Presumption When a non-parent establishes standing to bring suit in court, one of the hurdles they will have to overcome is the “fit parent presumption.” So, what exactly is a fit parent? Neither the Texas Supreme Court nor the Texas Family Code explicitly define a “fit parent.” However, Troxel v. Granville is a notable family law Supreme Court case that provides some guidance, defining a fit parent as “one who adequately cares for his or her children.”⁶ When in dispute, however, what constitutes a “fit” parent will most often be determined by human judges who may have widely varying views of what is considered competent, moral, and suitable.⁷ Any best interest determination in which the court weighs a fit parent's rights against a nonparent’s claim to conservatorship or access is to include a presumption that a fit parent acts in his or her child's best interest.⁸ A presumption is a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (i.e., greater weight) of evidence which disproves or outweighs the presumption.⁹ A presumption can be rebuttable when there is evidence to create doubt or is proven to be false. When a presumption exists in law it establishes who has the burden of proof. This means that the burden is on the non-parent to establish the parent as unfit. If there is no evidence produced, then the presumption stands, and the court will rule for the child’s biological parent.
In Re C.J.C. In re C.J.C is a recent Texas case that set a new precedent by applying the fit parent presumption to modifications of existing orders. The Court determined that the fit parent presumption is embedded within the best interest determination in Texas law. In this case, the child’s mother sought a modification of custody orders but while the case was pending, the mother tragically died in a car accident. In light of this, the child’s father moved the child in with him and filed for sole custody. The mother’s fiancée and parents petitioned to intervene in the suit, and the father sought mandamus relief in the Court of Appeals.¹⁰ The Court of Appeals rejected the grandparents’ petition for lack of standing but granted the fiancée’s because the child and late mother resided with him for a period exceeding six months and he shared her periods of possession of the child. This case went to the Texas Supreme Court, where the question before the Court was whether the presumption that fit parents act in according to the best interest of their children applies to a modification of existing orders that names a parent as a child’s managing conservator.¹¹ The Texas Supreme Court held that it does. They cited Troxel and ruled that because a fit parent presumptively acts in the best interest of his or her child, they have a fundamental right to make decisions concerning the care custody and control of that child.¹²
The Texas Supreme Court held that no evidence was presented to show the father was unfit, and in this case, the fiancé never challenged the fitness of the child’s father, therefore, this was not something the Court could evaluate. Because the father was presumed fit in the original suit, then the presumption still applied in a modification suit unless evidence was presented that the father was doing less than an adequate job. Importantly, In re C.J.C. further strengthens a parent’s rights and advantage in a suit between non-parent and parent.
Future Impact
In looking at non-parental rights, we must ask what are parental rights in Texasand how much court interference is allowed? The primary holding in Troxel was that the Fourteenth Amendment provides a fundamental right for parents to oversee the care, control, and custody of a child, and courts are not keen on involving themselves in the private family realm more than necessary.¹³ However, in suits where the presumption would apply, it seems to be that non-parents should have sufficient evidence early in procedural matters to meet their burden. Note that the fit parent presumption no longer applies when a non-parent overcomes the presumption in a prior suit that resulted in the biological parent being granted the right to possessory conservatorship1¹⁴ of the child, or the biological parent voluntarily gave up their custody rights to the non-parent.¹⁵ While non-parents have a very high burden, there is little guidance as to what evidence is needed to overcome the presumption. Therefore, we must look to future legislative action and Texas Supreme Court rulings to offer further clarification on how to successfully navigate complicated questions within Texas family law.
Sources ¹ Stephanie Kramer, U.S. has world’s highest rate of children living in single parent households, PEW RESEARCH CENTER, (Dec. 21, 2019), https://pewrsr.ch/2LLvbxW ² Tex. Fam. Code Ann. § Sec. 153.002. ³ Tex. Fam. Code Ann. §102.003 ⁴ Tex. Fam. Code Ann. §102.004 ⁵ Id. ⁶ Troxel v. Granville, 530 U.S. 68 (2000). ⁷ Salle S. Smith, In re C.J.C.: A “Fit Parent” Presumption Emerges, 43rd Annual Marriage Dissolution Institute (April 2021). ⁸ In re C.J.C., 603 S.W.3d 804, 818–19 (Tex. 2020). ⁹ Presumption, Black’s Law Dictionary (5th ed. 2016) ¹⁰ Mandamus is a court order to perform a particular act directed to a lower court or to a governmental body. Black's Law Dictionary (5th ed. 2016). ¹¹ In re C.J.C., at 808. ¹² Id. ¹³ Troxel v. Granville, 530 U.S. 68–69 (2000). ¹⁴ Under the Texas Family Code, a biological parent will be designated as a possessory conservator when a non-parent is designated as a child’s sole or joint conservator, unless such designation is not in the best interest of the child. Tex. Fam. Code Ann. § 153.191, §153.192(a). When visiting the child, the possessory conservator has the right and duty to care; to control; to protect; to discipline; to consent to medical care; and “to direct the moral and religious training of the child”. Tex. Fam. Code. Ann. §153.074(1–4). ¹⁵ Salle S. Smith, In re C.J.C.: A “Fit Parent” Presumption Emerges, 43rd Annual Marriage Dissolution Institute (April 2021) at 5.
