Holly Draper | Understanding C.J.C. and the Constitutional Fit Parent Presumption

I’m excited about today’s episode of the “Texas Family Law Insiders” podcast. On the show, I sit down with Steve Gordon for an interview about C.J.C., my landmark Texas Supreme Court case protecting the constitutional rights of fit parents.  

I walk Steve through the journey of that case to the Texas Supreme Court, where they ruled 9-0 in favor of my client and in favor of protecting parental rights. The case has garnered national attention, and on this episode, I’ll break down the the Texas Supreme Court’s decision, as well as: 

  • The one most important takeaway that all family law judges and attorneys need to understand about C.J.C.
  • The important distinction between the statutory parental presumption and the constitutional fit parent presumption
  • The most important things to consider before settling custody cases involving non-parents
  • What comes next after C.J.C.
  • And more

Mentioned in this episode:


Holly Draper: Under C.J.C if a parent is fit, although someone might have standing they’re not entitled to any relief.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Steve Gordon: Welcome to the Texas Family Law Insiders podcast. You may have noticed I’m not your usual host. I am here today to turn the tables on our host Holly Draper. My name is Steve Gordon and Holly’s invited me in to actually interview her on a recent case that that she took before the Texas Supreme Court. So we’re gonna get into that here in just a moment. But first, I want to give Holly a proper introduction. She’s the CEO and managing partner of the Draper Firm. She is a Board Certified family lawyer in Texas. And she’s got experience handling a wide range of complex family law matters, ranging from high net worth divorces to highly contested custody cases and everything in between.

She’s also an accomplished and accomplished Family Law appellate lawyer, as we’ve talked about, and she most notably won a landmark parental rights case in the Texas Supreme Court that garnered national attention. And the Supreme Court ruled 9-0 in her favor, or in favor of her client and issued what may be one of the most important parental rights opinions in Texas history. And we’re here to talk with her about that today. Holly Draper, welcome.

Holly: Thank you so much for being here with me, Steve.

Steve: I’m excited about this. Because I know I’m gonna learn a lot. And and I know everybody listening is gonna learn an awful lot about this particular case and some of the nuances of it. And so real quickly, before we get into all of those, all kind of the details. Give everybody just a quick, maybe 30 second bit of background on you beyond just the bio. How did you get to the stage of your career to become as successful as you’ve been?

Holly: Sure. So I’ve been practicing law since 2004. And in 2008, I started my own practice. And initially, it was kind of a general practice. But over time, I grew to really love family law. And so I decided to focus my practice exclusively on family law. Became board certified in 2016. And really hadn’t done much in the appeals arena until the C.J.C. Case came along. There were actually two mandamuses in that case, first one was in re Clay, and the second one was C.J.C. And that has really been a launching point for me into it career as an appellate family lawyer.

Steve: Well, can you tell us a little bit about the background that led up to the C.J.C case?

Holly: Sure. So I was representing the father of a little girl who at the time was three years old. And what started out as a very ordinary custody modification case. There was a prior order that named mom as the quote, primary parent, she had a little bit more time than dad. We calculated it as about 54% of the time the mom. Dad paid some child support. Mom had filed to modify, seeking to modify the schedule and increase dad’s child support. Very ordinary child custody case in the family law world. And nothing was really happening in the case, it was just kind of sitting there until one day I got a phone call that the mother had tragically been killed in a car accident. And at the time I thought, this case is going to go away. And that was definitely not the case.

We had first the maternal grandparents intervened into the case seeking joint custody of the little girl with the dad. And then the mom had moved in with her boyfriend 10 or 11 months before she died and gotten engaged a few months before she died. And the fiance intervened seeking custody of the child with dad. We moved to strike both the maternal grandparents and the fiance based on standing issues. And that led the trial court let them both in and we followed our first mandamus which was in re Clay in the fourth Court of Appeals. And in that case, we were able to get the grandparents out on standing but not the fiance.

And this really pointed out a what I think is strange and not great part of Texas law that makes it easier for someone who happens to be living in the home with a child for more than six months to get in the door on a custody case than it does for family members who’ve been actively involved in a child’s life since birth. So after the first mandamus in re Clay the maternal grandparents were out, the fiance was in. And we went back to the trial court where we had a temporary orders hearing. And at that time, the trial judge named the father as the sole temporary sole managing conservator for the child.

But she named the fiance as a possessory conservator, and gave him more rights than a non parent possessory conservator under the family code, and gave him a stair set visitation schedule with the child. She also backdoored in the grandparents to give them access to the child through the fiance, even though they had been kicked out on standing. This is what led to mandamus number two, which is in re C.J.C. The fourth Court of Appeals just denied us without requesting an opinion. And that is when we took it up to the Texas Supreme Court. And we were able to get an emergency stay of the trial court proceedings and ultimately the Supreme Court did take the case.

Steve: Can you give us a bit of the history around the constitutional issues that were involved in the in this parental rights case?

Holly: Yes, so C.J.C is based on a United States Supreme Court case called Troxel vs. Granville from the year 2000. In Troxel, the United States Supreme Court essentially said that parents have a constitutional due process right to parent their children as they see fit, if the parent is a fit parent. So we call this the fit parent presumption, which essentially says that two presumptions, we presume that a parent is fit and we presume that a fit parent is acting in the best interest of the child. The Troxel opinion was a plurality opinion by Justice O’Connor, and in Troxel, the father died and the paternal grandparents sued for visitation rights. Prior to the father’s death, he and the mother were separated and he lived with the paternal grandparents. At first, the mother continued to allow the grandparents have access to the child, but wanted to limit their access to once a week.

The trial court awarded the grandparent’s visitation one weekend, a month, one weekend, one week during the summer and four hours on the grandparent’s birthdays. Ultimately, the United States Supreme Court overturned the trial court’s award and held that quote, so long as a parent adequately cares for his or her children, ie is fit, there will no normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. And the Supreme Court further noted that the trial court had improperly placed the burden in Troxel on the grandparent or on the parent to prove that visitation would not be in the kids best interest when the burden should have been on the grandparents to show that the mother was unfit.

Steve: So what were the key arguments in this case that you’ve made on behalf of the Father in C.J.C?

Holly: So in C.J.C, we were making constitutional arguments based on Troxel that the trial judge violated the father’s constitutional rights when she awarded rights and possession to a non parent over the fit father’s objections. We argued that the United States Constitution protects the rights of fit parents to handle the care, custody and control of their children free from state interference. And Texas had changed several laws following Troxel, but only with respect to grandparents and other relatives, because the Troxel case, just so happened to involve grandparents.

So we argued to the Texas Supreme Court that Torxel’s holding is not limited only to family members, but it must be extended to all non parents seeking conservatorship in order to protect parents constitutional rights. We also argued that the fit parent presumption must be applied in both original suits and modification suits, such as this one, we distinguished there’s a statutory parental presumption in Texas in section 153 or chapter 153 that does not apply in modification proceedings. And we wanted to make sure that the court clarified, this is not the same presumption, and therefore it does apply in this modification proceeding.

We had an issue with constitutional avoidance here, which basically means we, you know, courts don’t want to find things unconstitutional. And so we needed to give the court a way to read this fit parent presumption into current Texas law, because if they weren’t able to do that there were going to be a lot of statutes in Texas, both standing statutes, and the entire chapter 56 modification statute of the family code would be have to be found unconstitutional for failing to incorporate the fit parent presumption. So during oral argument, we encouraged the court to read the fit parent presumption into the best interest analysis. And that’s ultimately what the court did.

Steve: So what were the arguments made on behalf of the fiance?

Holly: But fiance argued primarily that the statutory parental presumption found in chapter 153.131 of the family code is the same as the constitutional fit parent presumption from Troxel, therefore, it does not apply in a modification proceeding. But the key there, the 153.131 statutory presumption is a presumption in favor of parents basically says there’s a presumption that a parent should be pointed as the managing conservator of a child over a non parent in original proceedings. Well, in this case, the parent was appointed the managing conservator over a non parent, and the non parent was named a possessory conservator.

So the statutory parental presumption, even if it applied in a modification proceeding, would not have prevented the result that happened here. So that was one of the very key arguments being made by the fiance was that they were the same. And that the because it was a modification, the parental presumption does not apply. The fiance also relied heavily on a case called V.L.K, which is a another Texas Supreme Court case from the year 2000, which was the case basically saying the statutory presented parental presumption does not apply modification proceedings, and went through all the rationales on that.

Steve: So I know you had a tremendous amount of amicus support in this case, can you tell us a little bit about that?

Holly: So C.J.C was very unique in that we had nine amicus briefs filed in support of our client in this case. It initially began, I reached out to somebody I knew at the Texas public policy foundation, and asked if they handle due process claims, and they said, yes, we do. And I said, well, I have one. So I sent them the information on the case. And that started the ball rolling of kind of one amicus group after another, getting interested in our case, and really wanting to protect parental rights. And I really think had we not had all the support that we did in that case, we may not have gotten the Texas Supreme Court’s attention, they may never have taken the case to begin with.

Steve: So once they took the case on and heard your arguments, how did they rule in the case?

Holly: So the court ended up rolling 9-0 in favor of the Father, and there was a concurring opinion by Justice Lehrmann. But the majority opinion said that the question presented in this case is whether the presumption that fit parents act according to the best interests of their children applies when modifying an existing order that names a parent as the child’s managing conservator. Because the fit parent presumptively acts in the best interest of his or her children, and has a fundamental right to make decisions concerning the care, custody and control of that child, the court held that it did.

And because neither the standing statutes nor the modification statute included the fit parent presumption, the court followed our request or our suggestion, and read the fit parent presumption into the best interest analysis in the modification proceeding. The court noted how similar this case was to Troxel. And that no one in either case claimed that the parent was unfit. And in awarding the fiance visitation and overnight possession over the fit father’s objections, the trial court had essentially substituted its determination of best interest for that of her father’s. And that is exactly the opposite of how the fit of the fit parent presumption that must be applied.

Steve: So from your perspective, what are the key takeaways from the C.J.C? case?

Holly: So a few issues are really key here. One is to understand that this case is not about standing. A lot of people associate C.J.C as a standing case, and they think once somebody is in the door on standing, that’s the end of the inquiry. So a lot of standing statutes, such as 102.003a9 and 102.003a11 have no constitutional safeguards to protect fit parents. And so this is a second layer of protection. Standing gets them in the door, but are they entitled to any relief? So under C.J.C, if a parent is fit, although someone might have standing, they’re not entitled to any relief. So second takeaway, I would say is that there are real the fit parent presumption is really two presumptions. Number one, the parent is presumed to be fit. And number two, the fit parent is presumed to be acting in the best interest of the child.

The most important takeaway that I want everyone to understand from this case is that the constitutional fit parent presumption, discussed in C.J.C. and Troxel is not the same as the parental presumption contained in chapter 153 of the family code. I’m seeing so many people confuse and conflate these two. And as Family Lawyers for years before C.J.C, we all just referred to the parental presumption. And we were all referring to the statutory parental presumption contained in the code we all knew didn’t apply in modification proceedings. And it was a very specific statutory issue. And now I hear a lot of people still using that term parental presumption and having that apply to C.J.C, which is not the case. These are two distinct and different issues. And it is super important that attorneys and judges understand the difference.

Steve: So did the court leave any unanswered questions?

Holly: Yes. So Justice Lehrmann did the concurrence precisely because there were, it was one key unanswered question, in this case. In C.J.C, there was no allegations whatsoever that the dad was unfit. He was, you know, great dad involved from the beginning. Nobody claimed he’s unfit and he shouldn’t have custody of his child. So the issue that was not answered by C.J.C is what is the criteria to show that someone is fit? What is the How do you overcome that burden? You know, during oral argument, I was asked by Justice Lehrmann about you know, was this a rebuttable presumption?

Can you rebut the fit parent presumption? And it is rebuttable. And in my opinion, the answer is already out there in case law and in the statutes that have interpreted Troxel. But in Lehrmann’s concurrence, she said, you know, we don’t know what the standard is for saying someone is unfit. And that is causing a lot of problems, in my opinion, in the trial court level and the Court of Appeals level, because we don’t have that answer yet in black and white from the Texas Supreme Court. And it’s essentially putting that judgment call right back into the lapse of trial judges to say, you know, is it in the best interest of the child to be with this non parent or not?

Steve: So what have you seen so far as the interpretation of C.J.C by different courts of appeals since the opinion came out?

Holly: So the opinion from the Supreme Court C.J.C came out in June of 2020. And since that time, we have as of now, which we are, you know, late July 2021, when I’m recording this. So far, there have been four courts of appeals cases that have addressed the relevant issues of C.J.C related to the fit parent presumption. So the first one was in the interest of SK and LK, which is a 2020 case out of the Corpus Christi Court of Appeals. In that case, it was a CPS case, the trial court had named an intervening non parent as a possessory. conservator. The Court of Appeals originally issued an opinion and a judgment upholding the trial court’s ruling the day before the C.J.C opinion came out.

After the C.J.C opinion came out the Court of Appeals all on its own, withdrew its opinion and substituted a new opinion in favor of the parent. And the Court of Appeals held that the non parent relative did not overcome the fit parent presumption as to the father. In the case that had originally been filed by CPS, where both parents were ordered to complete services. The child was placed with the intervening non parent relatives for more than 12 months, and the department had been named as a temporary managing conservator. This case is currently at the Texas Supreme Court. I haven’t seen anything about on it yet. So we’ll see if you know how the court takes you know what their opinion is on that case, and if they end up issuing an opinion.

The next case was in re BF, which is a 2020 case out of the Fort Worth Court of Appeals. It was a there was a temporary order that names the parents as joint managing conservator and named a non parent as a possessory conservator with periods of session. The non parent raised the father’s history of abusing methamphetamines, but no evidence was presented that the father was currently using drugs. There was also a claim there that there was a current CPS case against the father’s girlfriend. The Court of Appeals found there was no evidence the father was unfit and granted mandamus based on C.J.C. And I think it’s noteworthy that C.J.C went through the Fort Worth Court of Appeals.

So I kind of see the Fort Worth Court of Appeals as really firmly relying on C.J.C and interpreting it the right way. Another appeal that came out the opposite direction with very similar facts to the BF case is in re CDC. This was a Dallas Court of Appeals case in 2021, where I actually I represent the father on that case, on the appeal, that it was the majority, there was a majority opinion and dissent from the Dallas Court of Appeals, without them ever even requesting a response from the non parent. Which my understanding is very, very unusual. And the majority opinion from the Dallas Court of Appeals came to the opposite conclusion of the Fort Worth Court of Appeals and BF.

In CDC, both parents have been named as joint managing conservators in the prior order with the mother being the primary parents. The mother had ongoing drug issues and had been living with her parents. Mother admitted to being unfit and everybody that was not an issue, the mother was definitely unfit. The father had a history of drug use and some related criminal history. But that all occurred more than four years earlier. All the evidence presented at temporary orders is that he had cleaned up his life. He’d graduated from college, held a steady job, owned a house and had no concerns for the past several years. The judge, and these parents did not live close to each other, they lived about four hours apart. The judge flipped custody and made the father, the managing conservator with the exclusive right to designate the primary residence.

But he also named the mother and the grandparents as joint managing conservators with rights and possession. So mother’s parents are the ones who had intervened for custody. In that case, the three justice panels split with a majority and a dissent in the majority basically said that if there was any evidence at all, from any time that the trial judge could have used to find a parent unfit, that was enough to overcome the fit parent presumption. So that case is currently up at the Texas Supreme Court to mandamus very hard to get the Texas Supreme Court to take mandamus. But we’re hoping they will take that and answer this question of, you know, what makes a parent unfit. There’s one more cases that’s come out recently, in re BB, it’s a 2021 case from the El Paso Court of Appeals.

And that was a CPS case where the father argued he was entitled to the fit parent presumption under C.J.C. And that the department should not be awarded conservatorship over his objections. The Court of Appeals, they’re held that the fit parent presumption did not apply, because the father had been named the equivalent of a possessory conservator, not a managing conservator under a prior California order. So that’s one of the key issues here is the parent or both parents had to be named as a prior or as a managing conservator in the prior order, if there was a prior order. And there could not have been a non parent also appointed in that prior order.

One other thing that is super important for attorneys and judges to understand is, even though C.J.C was a modification, the constitutional fit parent presumption absolutely applies in original suits. It applies in both original suits, and in modifications, where a parent had previously been appointed as a managing conservator, and where a non parent had not been a party and named as a conservator in the prior proceeding.

Steve: So obviously, a lot of complexity here in practice, are you seeing issues with attorneys and judges, misunderstanding C.J.C?

Holly: I’m seeing a lot of issues where attorneys and judges alike are they don’t understand C.J.C. They do not understand the difference between the statutory peroneal presumption and the constitutional fit parent presumption, and it’s leading to incorrect results in cases. I’ve been brought in, in multiple cases, to argue motions to reconsider on temporary orders, where trial judges have incorrectly applied C.J.C to the facts of the case and have granted rights or possession to non parents. So I come in motion to reconsider. And we argue what, you know, we explained to the court what the correct interpretation of C.J.C is and how it applies to that case, or if it doesn’t apply to that case, and what the correct result should be. The biggest issue is attorneys confusing and conflating the statutory parental presumption with the constitutional fit parent presumption.

And I think the use of the term parental presumption across all presumptions here, really helps contribute to that confusion. And, you know, C.J.C did not extend the statutory parental presumption to modification suits. That is not what happened in C.J.C. So if you have an original suit, or you have a modification, where a parent was previously appointed as a managing conservator that did not have a non parent in the case to begin with as a conservator, then the constitutional fit parent presumption, as discussed in C.J.C, as discussed in Troxel, is going to apply.

I also see, I see arguments being made that we’ll C.J.C was a modification so the fit parent presumption doesn’t apply in original suits. It only applies in these types of modifications. And that’s really a ridiculous argument to make. Because the whole point of C.J.C was protecting the constitutional rights of fit parents, when a non parent is entering the suit for the first time. So whether it’s an original sapcr where a non parent is filing suit seeking custody, or it’s a modification that a non parent is intervening in, or non parent has filed to modify a prior order that they were not a party to, that’s when this constitutional presumption is going to apply. One of the other things I see is a misconception that now the parental presumption is going to apply in all modification proceedings, which is also not the case.

First of all, it’s not relevant when we have a parent versus parent situation. C.J.C and the constitutional fit parent presumption are only relevant in non parent custody cases. But if the non parent was already named as a conservator or given any type of rights and a prior order, that presumption has already been overcome, and the parent does not regain that presumption in a subsequent modification proceeding. Now, I would say, people say that the C.J.C doesn’t say that. And there’s not a Texas case out there right now that says that. But I think the Supreme Court gave us some guidance within C.J.C to let us know that that’s how they would rule. There’s a footnote in C.J.C. It’s footnote 78.

And basically, the Texas Supreme Court has referenced a Supreme Court case from another state where they essentially that other Supreme Court has essentially said, you know, when a non parent has been given rights, or possession in a prior order, that parent has successfully overcome the fit parent presumption, and the parent is not entitled to that in the future modification proceeding. Something really, really important for attorneys to keep in mind when they are considering settling cases involving non parents. If you let those non parents in the door, they are going to be there forever. Even though a court didn’t make a finding that you the parent was unfit by entering into an agreed order with a non parent, that makes them a conservator, or that gives them access to you know, court ordered access to a child, they’re going to be in forever. And they’re not you’re never going to get as a parent the benefit of that presumption again, going forward.

Steve: So in your opinion, what is the proper standard that courts should be applying to overcome the fit parent presumption?

Holly: So as I mentioned before, you know, Justice Lehrmann’s concurrence, says we have this an unanswered question about what is the right standard. In my opinion, and in the opinion of a lot of other people who have expert knowledge in this area, the standard should be significant impairment. And the primary reason I think that is the correct standard is because after Troxel, the both the Texas legislature and the Texas Supreme Court used the significant impairment standard to implement Troxel into cases involving grandparents and other relatives. So for example, in certain standing statutes, there are certain standing statutes that allow a grandparent or other relative to seek custody of a child.

And those standing statutes require the relative to prove significant impairment. What that means is essentially, the current child’s current circumstances would significantly impair their emotional development or physical health. So that’s in standing statutes, it’s in the grandparent access statute, so a grandparent can’t get any possession to their grandchild without submitting an affidavit right out of the gates that says why the child’s current circumstances are significantly impair their emotional development and physical health. In cases interpreting grandparent or in grandparent cases, you know, Texas Supreme Court has used the significant impairment standard for not giving grandparents rights over the objections of a fit parent.

And it doesn’t seem it does not make logical sense to me that we would have a significant impairment standard applying to grandparents, other relatives, but not applying to other non parents. And it also would be, you know, we have an abundance of case law interpreting significant impairment and what is required to overcome it. We know that burden is super high. You know, there are there are lots of grandparent cases primarily out there where the significant impairment standard is discussed. And by choosing to implement the significant impairment standard for the constitutional fit parent presumption in general, then it’s going to make things a whole lot easier for everyone to understand. Okay, we already know what significant impairment means. If you give it some other criteria, some other you know, definition of how, what makes the parent fit, then we’re going to have an overwhelming amount of cases where people are trying to interpret that.

Steve: Okay, Holly, so what comes next?

Holly: So the Supreme Court is definitely going to have to take up this issue, again, to clarify, you know, what is required to overcome the fit parent presumption. What makes a parent unfit. Texas legislature did not address the issue in the most recent legislative session, there were some bills, went back and forth. I actually went and testified on on those bills and was involved in that process. And, you know, the two different sides couldn’t come to an agreement. So it did not make it into the family code. That means it’s up to the Texas Supreme Court to spell it out for everyone. And, you know, maybe they’ll do that with CDC. Maybe they’ll do that with some other case. But I certainly think that’s the next step here. Is it someone in the Texas Supreme Court is gonna have to take this case and give us give us the standard.

Steve: Yeah, makes sense. So I, this is a complex issue. And I know that there gonna be people who listen to this and have questions. If they have questions, and they want to reach out and talk to you about that. Are you open to fielding those? And if so, how can they get ahold of you?

Holly: Yes, absolutely. I get a lot of phone calls, a lot of emails, a lot of messages through Facebook, of attorneys. I’ve even had judges reach out to me from across the state wanting to know my opinion, or, you know, my thoughts on C.J.C. How does it apply to the facts of their particular case? That’s something I’m almost always happy to discuss with people. You can give me a call our office number is 469-715-6801. Or you can look me up on Facebook. The Draper Law Firm has a Facebook page and send me a message through there and I’m happy to help.

Steve: Excellent. Well, thanks so much for sharing your expertise with us today. Again, I’m Steve Gordon for the Texas Family Law Insiders podcast and tune in to the next episode, where Holly will be back in the host seat and be interviewing another great guest.

Holly: Thanks, Steve.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com

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