NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

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February 24, 2020 by Robert Franklin, Member, National Board of Directors

On March 24th, the Texas Supreme Court will hear arguments in a case with the potential to severely erode the rights of biological parents (Lifesite News, 2/11/20).

The father, C.J.C. and the mother, D.A.W. had a daughter who remains unnamed in the legal documents.  The two parents split up and agreed to an almost equal parenting time arrangement.  D.A.W. began a relationship with her boyfriend, J.D. with whom she lived for about 11 months.  So the child spent about 5 ½ months of that time with her mother and J.D. and the same amount of time with her father.  There has never been either evidence or an allegation that C.J.C. is anything but an entirely fit and loving father.  When the child was four, D.A.W. was killed in a car accident.

Soon, D.A.W.’s parents filed suit seeking custodial rights to the child.  Eventually, and after almost three years of legal filings and counter-filings, that suit was finally dismissed.  As the U.S. Supreme Court case of Troxel v. Granville made clear, non-parent family members don’t have standing to assert custodial interests when a child’s parents are fit to care for it as C.J.C. clearly is.

What Troxel didn’t do is explicitly address the potential rights of non-relatives.  It didn’t do so of course because there was no such issue before it.

Texas statute law contains a gap that’s reflected by the Troxel precedent.  It allows standing to non-relatives to seek custodial rights to a child.  That is, the law contains no provision that non-parents can seek custodial rights only if the parents are unfit in some way.

Based on that, the trial court not only granted J.D. standing to seek custodial rights, it awarded him the status of possessory conservator (in popular parlance, non-custodial parent status).  Mom’s boyfriend was granted unsupervised time with the child at the expense of C.J.C.’s time with her.  Plus, as time goes on, J.D. will receive more and more time with the child, again reducing C.J.C.’s time.

Needless to say, C.J.C. is contesting the matter and he has several organizations, such as the Texas Public Policy Foundation, going to bat on his behalf.

To put it mildly, Judge Sherry Shipman’s decision in the case should be overturned and rapidly.  Moreover, the Texas Supreme Court should take the opportunity to make clear that, contrary to Shipman’s bizarre ruling, Texas parents don’t come into court on an equal footing with every boyfriend or girlfriend, nanny or next-door neighbor who claims to have developed a relationship with a child.  It needs to state loudly and clearly what a century of U.S. Supreme Court jurisprudence supports – that parents are the natural guardians of children, that families take precedence over other forms of childcare and that the thinking in Troxel extends beyond a child’s grandparents to non-relatives like J.D.

It also needs to instruct the Texas Legislature to amend the applicable parts of the Family Code to bring them into compliance with Troxel’s requirement that the state has no business interfering in a parent’s care of a child absent a showing of unfitness on the part of that parent.

Failure to do those things will open the door to deeply pernicious attacks on the family, children’s rights to their parents and parents’ rights to their children.  This is a good opportunity for the Texas high court to do the right thing and help preserve the family values we hear so much about.

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