fit-parent presumption in Texas

2024See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (explaining that the State may not “infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better decision’ could be made” (quoting Troxel v. Granville, 530 U.S. 57 , 72–73 (2000) (plurality opinion))). 3 The court of appeals went a step further and concluded that Aunt and Uncle did not overcome the fit-parent presumption because no evidence was presented “to establish physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior” by Mother. 668 S.W.3d at

2023See Troxel, 530 U.S. at 68 (defining “fitness” as providing adequate care); In re C.D.C., 2021 WL 346428 , at *6 (“[T]he existence of the fit-parent presumption necessarily requires that some evidence that a parent is not fit must be offered to rebut it.”); Interest of A.V., 9 2022 WL 2763355 , at *5 (“To prove Mother unfit here, Grandparents had the burden to prove that Mother cannot adequately care for A.V.”). 5 In making this determination, courts have understood that the relevant time period for assessing parental fitness is the present.

2026Texas courts have repeatedly emphasized that the fit parent presumption is “fundamental” and “deeply embedded in Texas law.” In re C.J.C., 603 S.W.3d 804 , 811-12 (Tex. 2020); In re Derzapf, 219 S.W.3d at 334-35 .

2024See In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010) (orig. proceeding) (per curiam); see also In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding) (per curiam) (“The Legislature set a high threshold for a grandparent to overcome the presumption that a fit parent acts in his children’s best interest . . . .”). 4 To allege facts that would overcome the fit-parent presumption, the grandparent must allege that the child’s physical health or emotional well-being has been, and will continue to be, “significantly impair[ed]” by denying the grandparent’s request for possession or access.

2024See In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010) (orig. proceeding) (per curiam); see also In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding) (per curiam) (“The Legislature set a high threshold for a grandparent to overcome the presumption that a fit parent acts in his children’s best interest . . . .”). 4 To allege facts that would overcome the fit-parent presumption, the grandparent must allege that the child’s physical health or emotional well-being has been, and will continue to be, “significantly impair[ed]” by denying the grandparent’s request for possession or access.

2023The Texas Supreme Court has described a nonparent's statutory burden of overcoming the fit parent presumption as "hefty." In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (per curiam).

2024“Such identifiable behavior or conduct may include ‘[p]hysical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior on the part of the parent.’” Id. (quoting Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex. App.—Houston [1st Dist.] 2017, no pet.)) (alteration in original).

2023Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

2022To overcome the fit-parent presumption, “a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being.” Id. at 256 . “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68 , 120 S.Ct. 2054 ); see also Troxel, 530 U.S.

2021In re C.J.C., 603 S.W.3d at 812 (internal footnotes omitted). 9 See also In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (“[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” (quoting Troxel, 530 U.S. at 68 )). –7– In order to overcome the fit-parent presumption, the evidence must do more than merely raise a suspicion or speculation of possible harm.

2023Based on the plain language of the standing provision, and the constitutional implications of it as explained in Interest of H.S., 550 S.W.3d 151, 161 (Tex. 2028), I disagree.

2023Interest of H.S., 550 S.W.3d 151, 152, 154 (Tex. 2018) (reversing the court of appeals’ holding that “standing under § 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child’s parent is unfit or has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period”).

2024To overcome the fit-parent presumption, “a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being.” In re Pensom, 126 S.W.3d 251, 256 (Tex. App.—San Antonio 2003, no pet.).

2022To overcome the fit-parent presumption, “a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being.” Id. at 256 . “[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68 , 120 S.Ct. 2054 ); see also Troxel, 530 U.S.

2024Because the trial court did not address the “fit parent” presumption, we do not reach the question of whether a showing of significant impairment might be sufficient to overcome that presumption.6 See N.H., 652 S.W.3d at 496 (interpreting C.J.C. to hold that the fit-parent presumption is rebuttable and that, if the parent is fit, then the trial court is “required to presume that [the parent] acted in the best interest of the [c]hild when she decided how frequently or infrequently to allow visitation with the Ex-Girlfriend”). 6 We nonetheless note that, to the extent that the “significant impai

2023Interest of S.T., 508 S.W.3d 482, 492 (Tex. App.— Fort Worth 2015, no pet.).

2023See In re J.M.G., 553 S.W.3d at 143 .

2022See id.; see also In re H.L., 613 S.W.3d at 726–27; In re J.M.G., 553 S.W.3d at 143 ; In re Kelly, 399 S.W.3d at 284 .

2024See In re J.A.J., 243 S.W.3d at 616 . (explaining we review conservatorship decisions for an abuse of discretion, i.e., whether the decision was arbitrary or unreasonable).

2023See Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—Dallas 1997, no writ) (“A party’s consent to the trial court’s entry of judgment waives any error, except for 10 jurisdictional error, contained in the judgment, and that party has nothing to properly present for appellate review.”); see also In re J.Z.B., No. 05-18-00887-CV, 2019 WL 1486913 , at *1, *4 (Tex. App.—Dallas Apr. 4, 2019, no pet.) (mem. op.) (applying consent doctrine to agreed SAPCR modification where agreement was read into the record).

2022Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (quoting In re L.D.F., 445 S.W.3d 823, 830 (Tex. App.—El Paso 2014, no pet.)).

2021In re J.R., No. 05-19- 00904-CV, 2020 WL 219315 , at *4 (Tex. App.—Dallas Jan. 15, 2020, no pet.) (mem. op.) (citing In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet. denied)).

2021Id. (citing In re B.B.M., 291 S.W.3d at 467 ).

2020The question of the degree of evidence necessary to overcome the presumption that a fit parent’s 3 See, e.g., Hernandez v. Hernandez, 265 P.3d 495, 497 (Idaho 2011); McAllister v. McAllister, 779 N.W.2d 652 , 661–62 (N.D. 2010); SooHoo v. Johnson, 731 N.W.2d 815 , 819–20 (Minn. 2007); In the Matter of ES v. PD, 863 N.E.2d 100 , 104–06 (N.Y. 2007); Harold v. Collier, 836 N.E.2d 1165, 1168 (Ohio 2005). 4 In his Troxel dissent, Justice Stevens noted, “While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving established familial or family-like

2020See id.; see also Shook, 381 S.W.3d at 542–43 (holding that the court of appeals, in reversing the trial court’s appointment of a nonparent as managing conservator, erred in foreclosing the trial court on remand from considering (1) whether changed circumstances since the initial order would allow the nonparent to overcome the statutory presumption as to managing conservatorship and (2) whether, in the event the nonparent could not overcome the statutory 5 presumption, it would nevertheless be in the child’s best interest to appoint the nonparent possessory conservator or grant her access).

2020See Rideout v. Riendeau, 761 A.2d 291, 301 (Me. 2000) (noting that the “cessation of contact with a grandparent whom the child views as a parent may have a dramatic, and even traumatic, effect upon the child’s well-being”). 4 As such, while the fit-parent presumption is a pivotal part of the best-interest analysis even in the absence of a specific statutory standard, it is not absolute.

2020The question of the degree of evidence necessary to overcome the presumption that a fit parent’s 3 See, e.g., Hernandez v. Hernandez, 265 P.3d 495, 497 (Idaho 2011); McAllister v. McAllister, 779 N.W.2d 652 , 661–62 (N.D. 2010); SooHoo v. Johnson, 731 N.W.2d 815 , 819–20 (Minn. 2007); In the Matter of ES v. PD, 863 N.E.2d 100 , 104–06 (N.Y. 2007); Harold v. Collier, 836 N.E.2d 1165, 1168 (Ohio 2005). 4 In his Troxel dissent, Justice Stevens noted, “While this Court has not yet had occasion to elucidate the nature of a child’s liberty interests in preserving established familial or family-like