Parental Rights At Stake before the Supreme Court of Texas for Fourth Time in Three Years.

In another critical case before the Supreme Court of Texas (SCOTX), a non-parent is now battling for custody of a child from the child’s biological mother. The non-parent asserts that she should be entitled to certain decision making power over the child, even though she is of no biological relation.

The story may feel familiar to supporters of parental rights in Texas. In the last four years, FFP’s legal team has been before the Texas Supreme Court six times.

In two of those cases, FFP’s team defended families against abusive practices by CPS. The other four cases, all within three years, have been major cases dealing directly with fundamental questions of the constitutional rights of all Texas parents.

The theme of these four cases has been unmistakable. The recurring story goes something like this: A non-parent has a disagreement with a parent over some decisions that the parent is making for the child. The non-parent believes that they could do better. When the parent refuses to comply, the non-parent takes them to court and demands that a judge give them certain decision making power in the child’s life. Whether this parent can exercise their constitutional right to make decisions for their child now rests in the hands of a single judge.

FFP’s consistent position in all of these cases has been that, when faced with such a dilemma, a judge is constitutionally obligated to presume that any decision a fit parent is making for their child is in that child’s best interests. In 2020, the Texas Supreme Court unanimously agreed with our position in the case of In re CJC.

In three subsequent cases, including the Kalinec case concluded just last month as well as the new case now before the court, FFP has argued that a judge may overrule the decisions of a fit parent and award decision making power to a non-parent only if such action is required to protect the child from significant harm. Absent a risk of significant harm to the child, there is no justification for a judge overruling the decisions of a fit parent regarding their child.

In each of the last two cases, the court resolved the cases without directly answering the key question: What level of harm is required before a judge may overrule the decisions of a fit parent?

Now, in the clearest case yet to come before the court, FFP is again urging the justices to issue a clear ruling protecting the rights of all Texas parents.

The case now before the court is titled In re NH. The dispute in the case is between a biological mother and a former romantic partner (another woman who lived in the home during the relationship) with no biological relation to the child.

In the eyes of the constitution, the dispute comes down to a parenting disagreement between a biological parent and a non-parent, thereby implicating the constitutional rights of all parents in Texas.

At the start of the trial, the child was just four years old. The ex-girlfriend had repeatedly insisted up until this point that the mother was a fit parent, but in 2019, she made the first claim that the mother wasn’t a fit parent.

The mother asserted her rights as the child’s sole biological parent as well as her ability to make all decisions for her child at the final trial in February 2021.  At this trial, the non-parent could not present any proof that the mother had harmed or neglected the child, making it impossible for her to establish that the biological mother was an unfit parent. According to the court’s judgment, the mother has the exclusive power to make all decisions involving the child without consulting anyone else.

In July 2022, the Court of Appeals also issued a judgment and opinion in which it was said that the non-parent had not presented enough evidence to disprove the legal presumption that the biological mother was a competent parent. The non-parent has since filed a petition with the SCOTX.

The US Constitution requires courts to presume that it is in a child’s best interest for the parent(s) to raise them. This was clarified in 2020, when the SCOTX held in In re C.J.C. that fit parents are presumed to act in the best interests of their child.. . However, the court did not provide any guidelines for what kinds of evidence could overcome this presumption.

This leaves a significant question unanswered. While the SCOTX has laid the foundation and framework it has yet to address this crucial question: “What risk of harm to a child is required before a judge may overrule the decisions of a parent in order to protect the child?” Many lower courts agree that this question has yet to be answered. In fact, this is the third case in three years to reach the Supreme Court of Texas on exactly this issue.

In the absence of this clarification, some courts have concluded that only a risk of significant harm to the child justifies overruling the decisions of a fit parent. Other courts assume that judges have a wide range of discretion to decide a dispute between a nonparent and a parent. This degree of inconsistency between courts threatens the rights of all fit parents.

Family Freedom Project has filed an amicus curiae brief in the case of In re NH, defending the constitutional rights of all parents and arguing to the court that only a risk of significant harm to the child should justify overruling the decisions of a fit parent. In this brief, we support the opinion that was issued by the Court of Appeals, which found that only a risk of significant harm to the child would justify overruling the decisions of a fit parent.

Family Freedom Project is asking the court to affirm the decision of the Fourteenth Court of Appeals, thereby protecting the constitutional rights of all parents in Texas.

Family Freedom Project, the largest Texas organization engaged in the fight to protect parental rights, is working tirelessly to protect the inherent liberty of all Texas families. We will continue to fight for the protection of the parent-child relationship both in the legislature and the courts.

How You Can Help:
Right now, the rights of Texas parents rest almost entirely in the hands of unelected federal judges, who come and go regularly and could change their minds on parental rights at any time. It’s time for this to change. That’s why we must pass a Parental Rights Amendment to the Texas Constitution.