Summary
This podcast episode, hosted by attorney Holly Draper, provides an update on Texas family law following the CJC decision. It explains how the constitutional fit parent presumption has been applied in new cases, clarifying that standing to sue does not guarantee relief. The episode differentiates between the statutory and constitutional parental presumptions, emphasizes that the fit parent presumption must be overcome by a non-parent, and discusses the emerging standard for this, which appears to be 'significant impairment.' Several cases interpreting CJC are reviewed, highlighting decisions that favor parents and others that defer to trial courts.
Key Insights
The CJC ruling integrated the fit parent presumption into the best interest standard.
Since the standing and modification statutes did not explicitly include the fit parent presumption, the Supreme Court read it into the best interest determination as the primary, first factor that must be overcome by a non-parent.
Standing allows entry into court but doesn't guarantee relief.
Just because a non-parent has standing, such as under statutes like 102.003(a)(9) concerning actual care, control, and possession, does not mean they have overcome the constitutional fit parent presumption required to gain rights or possession.
Texas has two distinct parental presumptions: statutory and constitutional.
The statutory parental presumption (Texas Family Code § 153.131) applies only in original suits and concerns managing conservatorship unless a parent significantly impairs the child. The constitutional fit parent presumption (from Troxel and CJC) is broader and applies to non-parents seeking any rights or possession over a fit parent's objection.
The standard for overcoming the fit parent presumption is likely 'significant impairment'.
While CJC did not explicitly define the standard, subsequent cases (NH and AV) suggest it mirrors the 'significant impairment' standard used in grandparent access statutes, requiring proof that either the parent's actions significantly impair the child or that denying access to the non-parent would significantly impair the child.
Sections
Introduction and CJC Background
This podcast provides updates on Texas family law since the CJC decision in June 2020.
The host, Holly Draper, represented the father in the CJC case which went to the Texas Supreme Court. This episode covers updates and cases that have come out since the decision, building on a previous podcast episode detailing the CJC case background.
The CJC ruling clarified the application of the fit parent presumption in modifications.
The Texas Supreme Court ruled unanimously that the constitutional fit parent presumption applies in modification proceedings when a parent was previously the managing conservator and a non-parent is entering the suit for the first time. This applies even if the parent is fit and the non-parent doesn't argue unfitness.
The CJC ruling integrated the fit parent presumption into the best interest standard.
Since the standing and modification statutes did not explicitly include the fit parent presumption, the Supreme Court read it into the best interest determination as the primary, first factor that must be overcome by a non-parent.
The trial court erred by substituting its judgment for the fit parent's.
In CJC, the trial court awarded visitation and overnight possession to a fiancé over the fit father's objections, which the Supreme Court found was the opposite of the required fit parent presumption.
The burden to overcome the fit parent presumption rests on the non-parent.
Justice Lehrmann's concurrence noted that the majority opinion did not specify the burden of proof required to overcome the presumption, as it was unnecessary in the CJC case due to the father's undisputed fitness.
Key Takeaways from CJC
Standing allows entry into court but doesn't guarantee relief.
Just because a non-parent has standing, such as under statutes like 102.003(a)(9) concerning actual care, control, and possession, does not mean they have overcome the constitutional fit parent presumption required to gain rights or possession.
Texas has two distinct parental presumptions: statutory and constitutional.
The statutory parental presumption (Texas Family Code § 153.131) applies only in original suits and concerns managing conservatorship unless a parent significantly impairs the child. The constitutional fit parent presumption (from Troxel and CJC) is broader and applies to non-parents seeking any rights or possession over a fit parent's objection.
The constitutional fit parent presumption applies in original suits and certain modifications.
It applies in original suits between a parent and non-parent, and in modifications where a parent was previously a managing conservator and a non-parent enters the suit for the first time. It does NOT apply if a parent was previously a possessory conservator or jointly appointed with a non-parent.
Agreeing to non-parent involvement in a final order forfeits future presumption benefits.
If a parent agrees to give a non-parent access or conservatorship in a final order, they may have difficulty removing them later and lose the benefit of the fit parent presumption in future modifications, as noted in Footnote 78 of CJC referencing the Reynolds v. Reynolds case.
The standard for overcoming the fit parent presumption is likely 'significant impairment'.
While CJC did not explicitly define the standard, subsequent cases (NH and AV) suggest it mirrors the 'significant impairment' standard used in grandparent access statutes, requiring proof that either the parent's actions significantly impair the child or that denying access to the non-parent would significantly impair the child.
Post-CJC Case Law Interpretations
In re Interest of NH was the first case to set a standard for overcoming the presumption.
This case held that a non-parent must show the parent is unfit, and that denial of access to the non-parent would significantly impair the child's physical health or emotional development, mirroring the grandparent access statute standard.
In re Interest of AV also applied the significant impairment standard to grandparents.
The court reversed the trial court's decision, finding the grandparents failed to overcome the statutory and constitutional presumptions by showing the mother was unfit or that denial of access would cause significant impairment.
In re Interest of SK/LK is pending before the Texas Supreme Court.
This CPS case will likely clarify the standard for overcoming the fit parent presumption. The court of appeals initially favored the grandmother but reversed after CJC, ruling against her.
Some cases strongly favor parents, overturning non-parent awards.
Cases like Enright v. BF and Enright v. GB & LB granted mandamus for fathers, finding past drug use or missed possession periods insufficient to overcome the fit parent presumption. Enright v. SD also favored a mother over a paternal grandmother.
Some cases defer heavily to trial courts, potentially undermining CJC.
Cases like In re CDC and In re Tad Mayfield show courts affirming trial court decisions if there is 'some evidence' of unfitness or impairment, raising concerns that this minimizes the high burden required to overcome the constitutional presumption.
The fit parent presumption may not apply if the parent was not a managing conservator.
In cases like In re BB and In re HBS, the court held the presumption did not apply because the parent was named possessory conservator or was not a managing conservator in the original order.
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