Let Her Stay: A Brief Overview

Posted on April 27, 2020 by Chris Kirker

Recently, social media and local media outlets have buzzed with the story of Ann and her unusual custody battle. The case has gone all the up to the Texas Supreme Court. Unlike most op-eds covering the case, this post does not seek to advocate for either party, but to provide an unbiased analysis on the case’s effects on Texas family law.

The underlying case (In re Clay, No. 02-18-00404-CV, 2019 WL 545722) was a modification suit initiated by the child’s mother who passed away before the conclusion of that case. 

At the time of the mother’s death, she was engaged to be married to her live-in boyfriend. Ann was subsequently sent to live with her biological father. At a later Temporary Orders hearing, the trial court appointed Ann’s late mother’s boyfriend as a temporary possessory conservator. This meant that the boyfriend could grant weekend possession of Ann to her grandparents. Ann’s father eventually petitioned the Texas Supreme Court for a Writ of Mandamus, citing an abuse of discretion by the trial court.

When a court imposes restrictions on a possessory conservator parent’s right to possession, Texas law requires the court to limit its restrictions to only those “required to protect the best interest of the child.” Ann’s father argues that the trial court abused its discretion in that regard. His argument stems from the interplay between limitations on the courts provided in the law referenced above and protections guaranteed by the U.S. Constitution. Ann’s father further argues that the U.S. Constitution shields fit parents’ “fundamental rights” to make child-rearing decisions, even when a state court judge believes a better decision could be made. He contends that constitutional due process rights require courts to presume “that fit parents act in the best interest of their children.” Buttressing his argument is the fact that this “fit parent presumption” also exists in the Texas Family Code

To support his position, Ann’s father argues that because the record contains no evidence which calls his fitness as a parent into question, that fitness must be presumed and, thus, his possession of the child must be presumed to be in the child’s best interest.

Ann’s late mother’s boyfriend first counterargument is procedural in nature. He argues that her father’s petition to the Texas Supreme Court is not warranted because the trial court followed established precedent and, therefore, had not made a clear abuse of discretion. Second, he argues that Ann’s father failed to raise the custody issue when the trial court had originally granted him sporadic possession and therefore, the father should not be permitted to raise the issue now after having already accepted the outcome. The boyfriend also argues that because her Ann’s father filed a Motion to Enter requesting that the trial court sign and enter this form of the Temporary Orders, that the father invited the alleged error.

Finally, the boyfriend also rejects the father’s invocation of the “fit parent presumption.” Instead, he argues for the application of an earlier case, in which the Texas Supreme Court stated that the fit parent presumption does not apply in modification suits and only applies in original suits affecting the parent-child relationship.

Assuming the Texas Supreme Court decides the case on the merits and ignores the (alleged) procedural defects, the impact of its ruling in In re C.C. will likely ripple across the family law bar. The case provides an excellent opportunity to settle questions surrounding the protection of constitutional rights in modification cases. Indeed, the case’s amici (including the State of Texas, Texas Public Policy Foundation, Alliance Defending Freedom, Parents Rights Foundation, and the Texas Home School Coalition) clearly demonstrate the public’s desire for an answer.

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