Insider Secrets for Winning Non-Parent Custody Cases in Texas

What’s currently happening in parent vs non-parent custody litigation? It has been over two years since the C.J.C. decision, so today I give you the latest updates in parent vs. non-parent child custody litigation.

As I launch my new book on this subject, I give you some tips and tricks for handling your next parent vs non-parent child custody case.

In this episode, I’ll cover:

  • Why you should always ask for a ruling on standing (and what to do if the court denies it)
  • The two prongs of the fit parent presumption
  • When to decline representation to a non-parent
  • The ins and outs of the mandamus process
  • Discovery, summary judgment, and trial
  • And more

My book, Insider Secrets for Winning Non-Parent Custody Cases in Texas, is now available for free at

Mentioned in this episode:


Holly Draper: Hi, everyone, it’s Holly Draper, and today I’m here to do a solo episode to give you the latest updates in what’s going on in parent versus nonparent custody litigation, and the post C.J.C world.

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.

Holly: I actually have recently published a book on this topic, you can get a free ebook copy, if you go to my website. If you go to, there’s a link at the top for the free ebook. And if you want a fancy, hard copy, you can find those on Amazon. When you request the free ebook, it’s also going to give you a link to go to the Amazon site. And today, we’re gonna go through some of the things from my book that are not included in the first two episodes I did on C.J.C and post C.J.C stuff. So if you haven’t already listened to those episodes, I highly recommend you go back and find those, they’ll give you all the background on C.J.C. and on the cases that have come out since then, but today, we’re gonna go into some other nonparent versus parent custody litigation issues.

So the first thing I want to talk about is the issue of standing. It’s really important to understand and keep in mind that C.J.C and the fit parent presumption are not about standing. We did our first mandamus in the C.J.C litigation, which was in re Clay. And we realized at that time that the crazy state of Texas third-party standing law made it easier for a nonrelative who just happened to live in the home with a child to get in the door on standing than a grandparent or other relative who had been actively involved in child’s life since birth. That result to me was patently wrong on its face. But standing if you don’t know relates to the ability to file suit. And just because someone has standing and can get in the door to file a lawsuit does not mean that they are entitled to any actual relief.

That’s what C.J.C and the cases post C.J.C on this topic, deal with. The most common standing statutes that we see, at least that we dealt with in C.J.C were 102003a9, which gives standing to a nonparent who has had, quote, actual care, control and possession of a child for at least six months ending not more than 90 days before filing the petition. This standard is modified as you might think it is. The seminal case on this issue is in re H.S. But in in re Clay which was the predecessor to C.J.C same litigation. You know, we saw things like you know, waking up to get a child a glass of milk, or you know, put a child back to bed during the night or feeding her chocolate milk in the morning. Basically just being a helper to a parent was enough if the person was living in the primary residence to meet this standard.

A person who has standing under 102003a9 is not necessarily entitled to relief. And that’s very important to keep in mind. Another standing statute we see a lot would be 102003a11, which gives standing to a nonparent with whom the child and the child’s guardian, managing conservator or parent have resided for at least six months, ending not more than 90 days preceding the date of filing of a petition if the child’s guardian, managing conservator or parent is deceased at the time of filing the petition. This provision which was also an applicable standing provision in C.J.C. requires no level of involvement in the child’s life from the nonparent other than having lived in the same home for the requisite amount of time. This standing statute very clearly does not incorporate any constitutional protections of the fit parent presumption.

In all cases involving nonparents, if there is any possibility that the nonparent lacks standing, the parents should promptly file a plea to the jurisdiction or a motion to strike for lack of standing. Standing is jurisdictional and if a party lacks standing, an order entered involving that party will be void for lack of subject matter jurisdiction. Do not let a court consider temporary orders or other sensitive relief without first addressing the issue of standing. Be sure to get a ruling on this issue. Now, we all know that that’s easier said than done sometimes and courts aren’t always willing to give you what you asked for. If the court won’t give you a ruling prior to moving on to temporary orders, be sure to reiterate your position that the nonparent lacks standing and you object to proceeding with on a hearing on temporary orders. And your position is that any order entered by the court would be void for lack of jurisdiction.

In the event, the court denies your plea to the jurisdiction or motion to strike, just remember that standing gets a party in the door to filing a lawsuit. But it does not mean that party has a right to any relief. Continue to argue that the nonparent is entitled to no relief without overcoming the fit parent presumption. If you are meeting with a potential client that is a nonparent, you want to take a serious look into both standing and the fit parent presumption before you agree to take that case. You know, a nonparent might have a legitimate basis for claiming standing under the Family Code. But does that nonparent have any legitimate basis for actually obtaining relief? Can they overcome the fit parent presumption? If not, you know, I think it would be very wise to decline representation and explain the reason why to that potential client. Don’t waste judicial resources and drag parents through expensive litigation when you know there are no proper legal grounds for bringing a case by a nonparent.

Again, remember that because standing is jurisdictional, the nonparent must have standing at the time suit is filed. This means a nonparent cannot file suit and then go on a discovery fishing expedition trying to find evidence of significant impairment, sufficient for standing under 102004 or the grandparent access statute. This is also important because significant impairment is you know appears to be the standard for overcoming the fit parent presumption. If they don’t have that evidence at the beginning, they should not be able to come in and go on a fishing expedition trying to find it. It’s not often apparent from the pleadings what type of sanding a nonparent claims to have. So if you’re representing a parent, you know file your plea to the jurisdiction or motion to strike as soon as possible to try and keep that fishing expedition from happening.

If you represent the parents, and your initial plea to the jurisdiction or motion to strike is denied, but you really believe that standing is not appropriate, continue to maintain your claim that the nonparent lacks standing throughout the case. And if possible, file a mandamus. As soon as the judge denies your motion, to avoid having to go through expensive litigation, only to have orders rendered void for lack of jurisdiction on standing room grounds down the road. In a recent case of in interest of D.D.L. This is a case out of the Corpus Christi Court of Appeals. It suggested that evidence of the ability to overcome the fit parent presumption is required to establish standing, and although I certainly believe that should be the case, I don’t think anything else in our current state of law currently supports that position. In fact, one of our key arguments in C.J.C was that just because a nonparent has standing under 102003a9 or 11 does not mean that nonparent is entitled to relief.

So you’ve got pass the standing hurdle, then your next step is generally going to be temporary orders. A lot of counties, particularly, you know counties where I practice, in Collin and Denton County, sometimes Dallas, you get put on a very strict time limit for temporary orders. In Collin County, we get 20 minutes a side. In Denton County, you get 20 or 30 minutes a side. Same time, same sometimes in Dallas. Although I have found a lot of Dallas judges are more willing to give you a special setting and give you more time if you need it. But because of the short timeline when representing a litigant on either side in a parent versus nonparent custody case, it is critical that you focus on the two prongs of the fit parent presumption.

Those two prongs are number one, the fitness of the parent or parents. And number two, that the denial of access to the nonparents would significantly impair the child’s physical health or emotional development. If you missed the two prongs of the fit parent presumption, be sure to go back and listen to my second episode on post C.J.C. This is coming from two cases in the interest of N.H and in the interest of A.V. N.H is currently going up before the Texas Supreme Court as of the time of filing this or recording this. So you want to be sure if you’re listening to this well after the fact you know to see what’s happened there. This may change. But for now, two prongs to the fit parent presumption. Again, number one, the fitness of the parent or parents and number two that the denial of access to the nonparent would significantly impair the child’s physical health or emotional development.

If one parent is fit, and the other is arguably not, this does not negate the constitutional fit parent presumption as to the fit parent. In my opinion, because of the short time limits being put on temporary orders hearings, if you don’t have a silver bullet, you know, parent A shot parent B in front of the children, I think it’s going to be extremely difficult, if not impossible for a nonparent to overcome the fit parent presumption at a temporary orders hearing. If you’re representing a nonparent, and need more time to make your case to overcome this constitutional hurdle, you want to be sure to fight on the record for more time. If you’re in Dallas County, I’m sure there are some other counties too, there may not be a record at temporary orders automatically. You may want to have your own. Unless you’re gonna consider a de novo obviously.

Assuming you have a record, you want to ask to put an offer of proof on the record. I wouldn’t expect this to be granted since the court is already limiting your time, but I would still ask to preserve this issue for mandamus. For either side, I would consider filing a brief in advance of your hearing setting forth the law on this issue and how you expect it to be applied in this case. I have seen time and time again that many, many judges and many attorneys out there do not understand this issue. They don’t know about the fit parent presumption. They don’t know about the difference between the statutory parental presumption and the constitutional fit parent presumption. They don’t understand that standing is not the same thing as overcoming the fit parent presumption. So by briefing this issue in advance, you can help educate the court and help them understand what the law really is in this area and what you’re expecting the ruling to be.

If the court does not give you adequate time to present your case, despite your objections, you might consider filing a post hearing brief explaining the evidence you were not given time to admit. In the event you get an adverse ruling, this will least give you something to show the appellate court to prove that your limited time negatively impacted your client’s ability to put on a case on this issue. When you’re representing a parent, it can be tempting to focus on the bad facts against the nonparent at temporary orders. If you’re limited on time, do not waste valuable time fighting an irrelevant battle. The key issue is whether or not the nonparent can overcome the constitutional fit parent presumption. Focus your questions on those specific issues. If there are bad facts against the nonparent, certainly you know try to throw them in at the end, try to get them in if you can. But you really do not want the court to even consider whether or not the nonparent should have possession.

The focus should be on the key issue of the fit parent presumption. If the court awards rights or possession to the nonparent, and you believe the court did not consider the applicable law or did not consider all the evidence, then I would consider filing a motion to reconsider. I often use this option when I’m hired to represent a parent or nonparent following an adverse temporary orders ruling where the prior counsel did not appropriately argue the fit parent presumption. I file a motion to reconsider setting forth the applicable law and applying the facts from the hearing to that law in urging the trial court to issue a new temporary order. I have been successful doing this several times, particularly when the attorneys involved in the hearing before me were not super up on this area of the law, and therefore did not educate the judge accordingly. If the motion to reconsider is not successful, you know, then I can show the appellate court on mandamus that the trial court was given an opportunity to consider the appropriate law and still chose not to rule, not rule correctly.

The next step if you get an adverse ruling in a temporary orders hearing, or if you get an adverse ruling on the jurisdictional issue with a plea to jurisdiction or motion to strike. The next step you would be looking at is a mandamus. Specifically, if you represent the parent, and you believe the nonparent didn’t have standing, you want to file a mandamus. If you represent the parent and you believe the trial court has awarded rights and possession to a nonparent, without them overcoming the fit parent presumption, you should be looking at doing a mandamus. Similarly, if you represent the nonparent and the trial court dismissed you from the case or failed to award you any rights or possession when you believe that the fit parent presumption was overcome, you should be looking to mandamus.

Mandamus is extraordinary, extraordinary relief, but it is available in these types of situations. It is much more complicated to file a mandamus than an appeal, in large part because you need to create your own record. It is very time intensive. The rules are very specific. If you’re not familiar with the mandamus proceedings, or the mandamus process, then I highly recommend finding an attorney who can handle it for you. Or if you’re wanting to learn, you know, see if you can find an attorney who is willing to mentor you through that process. Maybe co counsel with you to help you learn how to do it so you can do it in the future. I love handling mandamuses. That’s what C.J.C was. That’s what in re Clay was. So if you don’t want to learn how to do a mandamus, and you have a good case, certainly we’d love for you to reach out to me and talk about your case.

Voiceover: This episode of the Texas Family Law Insider’s podcast is sponsored by the Draper Law Firm, providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. The Draper Firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit or call 469-715-6801.

Holly: So delaying is your enemy when it comes to a mandamus, but you can’t file a mandamus till you have a final temporary written order from the trial court. Sometimes this means you’re gonna have to file a motion to enter on an order that you don’t really want to be entered solely so that you can seek your appellate remedy. You know, be sure to emphasize in your motion to enter that you do not agree with the ruling, but that you believe your proposed order accurately reflects what the trial court ordered. You do not want to sign off on a proposed order from the other side just to get a ruling entered if their proposed order goes beyond what you believe is appropriate based on the court’s ruling. And in that scenario, that’s when you would want to file a motion to enter.

The standard for having a mandamus granted is abuse of discretion. In general family courts are given very broad discretion. But standing and egregious failure to follow the law on temporary orders are legitimate reasons that you could have a mandamus granted. Nonparent custody cases are often riper for mandamus than your traditional parent versus parent custody case. The first reason being that standing is often very questionable in nonparent custody cases and any orders entered without standing is void. If you think a nonparent lacks standing, do not wait for further litigation to happen. File your mandamus as soon as the trial court denies your plea to the jurisdiction or motion to strike.

Second, decisions to give rights or possession to a nonparent over the objections of an arguably fit parent are also proper mandamus issues. The burdens that a nonparent must overcome are high. And with the limited time we often have in temporary orders hearings, as I mentioned before, it can be really difficult for nonparents to overcome that burden. Be aware that even though nonparent custody litigation is often ripe for mandamus. The odds of success on mandamus as a whole are generally very low. And the procedures for filing a mandamus are complicated and time-consuming. Filing a mandamus does not guarantee that you’re even going to get an opinion or even that the other side’s going to have to file a response. When you file a mandamus in the court of appeals, they can just deny it without any explanation whatsoever. Or they can choose to request a response from the other side.

If the Court of Appeals does request a response, your chances are really good that you’re gonna get an opinion. But you still might not. If you’re representing the parent in this type of case and are going to file a mandamus because the trial court granted a nonparent possession or rights, I would also strongly consider filing a motion for emergency stay of the underlying suit in the court of appeals. So whenever we follow mandamus in this type of case, we’re filing both the petition for mandamus and a motion for emergency stay trying to get a stay of the temporary order, at least insofar as the nonparent has rights and possession. Sometimes I’ve gotten a stay there. Sometimes the court kind of leaves it pending trying to get us a quick ruling. Sometimes you just get a denial.

If you’re not successful in the court of appeals, either because your mandamus was just flat out denied or because the other side had a mandamus granted, then your next step is to consider filing a petition for a writ of mandamus in the Texas Supreme Court. The procedure is different in the Texas Supreme Court than it is in the court of appeals. You begin by filing a much shorter brief. In my office, we call it a mini brief, where the sole purpose is trying to convince the court that it should take your case. Texas Supreme Court generally does not care about the outcome of one individual case, they care about taking cases that will be important to the jurisprudence of the state. And that may impact a lot of other cases. So if you want the Texas Supreme Court to take your case, you need to convince them that your case is exactly that type of case.

When a mandamus is filed in the Texas Supreme Court, it goes through a process that kind of is compared to a conveyor belt. It gets put on the belt and you need to pique the interest of one justice first to get the court’s request or response to your mini brief. And as the process goes along, further on down the conveyor belt, you need more and more justices interested in your case to avoid having it fall off the belt at the end for an automatic dismissal. In order to get to oral arguments, you need at least four justices interested in your case. So although the odds, the odds of success on a mandamus in general are very low, probably less than 10%, if you can get to oral argument, your odds are actually quite high.

If your mandamus is successful, it may or may not mean the end of your case. If the appellate court granted mandamus against a nonparent on standing grounds, the case against the nonparent is over because there’s no jurisdiction. However, if the appellate court granted mandamus, because the trial court abused its discretion in awarding rights or possession to nonparents, without overcoming the Fit parent presumption, or the statutory parental presumption, the case might not be over. While a nonparent might not have been able to overcome these presumptions in a 20-minute per side temporary orders hearing, they still might be able to overcome it in a final trial. They can proceed with discovery, there might be additional evidence down the road, you know, a one or two-day trial is going to make it a lot easier if the evidence is there for a nonparent to produce enough to overcome those presumptions than at a temporary orders hearing.

So once you get past the temporary order stage, you generally will find yourself in the discovery phase, and you might be thinking about a settlement. These areas definitely warrant special consideration. When cases involve a nonparent. Discovery is particularly important in parent versus nonparent custody litigation. It gives the parent the opportunity to nail down then on parent on any evidentiary support for overcoming the statutory parental presumption and the constitutional fit parent presumption. It gives a nonparent the opportunity to obtain information from the parent that might help in overcoming those difficult burdens.

In the age of initial disclosures, it’s really important for parties that are involved in this type of litigation to address the issues of standing, parental fitness and significant impairment right out of the gates in those disclosures. The nonparents should lay out very clearly the grounds under which he or she is claiming standing. In fact, supporting those grounds. The nonparent should also lay out clearly the evidence he or she has to overcome the fit parent presumption, and either establish the parent is unfit or establish significant impairment. After initial disclosures, if you’re representing a parent, send out discovery requests that specifically target the issues of significant impairment and the fit parent presumption. Pin that nonparent down on whatever evidence or lack thereof the nonparent has for attempting to overcome those difficult presumptions.

If you get my ebook, or you get a hardcopy fancy from Amazon, I give a few examples of some discovery you might want to send out in these situations. If you’re representing a nonparent, and you have made it this far in the case, you know, you’re gonna want to use discovery as an opportunity to help beef up your claim of an unfit parent or a significant impairment. Again, these are really high burdens to overcome. So you got to get all the evidence you possibly can. One thing you might want to consider if you are representing a parent, and you get this fare in litigation against a nonparent is summary judgment. We all know that summary judgment are not granted very often in family law cases. But I think nonparent custody litigation is one area where you might find them useful and hopefully we’ll find courts willing to grant them.

With the new discovery rules for initial disclosures, you should know pretty fast whether or not the other side has sufficient evidence to overcome the burden in this type of a case. So if you’re representing a parent and the nonparent produces no evidence of significant impairment, and no evidence the parent is unfit in their initial disclosures, I would file a motion for summary judgment. As you know, Texas has two different types of motions for summary judgment, traditional and no evidence. And when representing a parent against a nonparent, I would file a motion that addresses both types of summary judgment. The initial instinct is to say that they have no evidence, but you have to remember that standard of overcoming a no evidence motion for summary judgment with a scintilla of evidence is super, super low. So really, you’re arguing they don’t have sufficient evidence to overcome these burdens.

Another important issue that I think is very different than traditional custody litigation involving only parents, relates to settlement. You know, most good family lawyers, in my opinion, are always looking for reasonable opportunities for their clients to settle. And many courts around the state require the parties to participate in mediation, before you have a final trial. And generally, I think that policy is great, but not necessarily in parent versus nonparent litigation. It is very risky if you are representing a parent to let a nonparent in with a settlement. It’s very important to keep in mind if you let the nonparent into the final order now, that nonparent is going forward in any future case, in the door. They’ve already overcome the fit parent presumption, they are going to be on equal grounds or very close to equal grounds with the parents.

So, you know, this is one case where if you believe the other side does not have sufficient evidence to overcome the burdens they have, do not let that nonparent in, because they’re going to be in forever. Now when you’re representing the nonparent, the converse is true. If you can just get your client’s foot in the door on a final order, your client will likely be in the door forever and will not have to overcome the fit parent presumption, or the statutory parental presumption again. So if the attorney on the other side does not understand this issue, the nonparent’s attorney should take full advantage. This is going to get your client a seat at the table going forward.

While a court can require you to mediate, the court cannot require you to settle. So if you represent a parent against a nonparent again and you reasonably feel, you know you’re confident in the fitness of your client, you’re confident the other side cannot show significant impairment. Make it clear right out of the gates, your client will not be signing any agreement that gives rights or possession to the nonparent. Your mediation might end really fast, but you know, you don’t want to waste everyone’s time and money on a mediation that is going to fail.

Another important consideration for settlement that I like to mention, regardless of whether or not a parent is involved is the primary designation. C.J.C really made me look at the primary designation differently. Because the primary designation of the mother who died in C.J.C is the only reason that the fiance got through the door and we went all the way to the Supreme Court. If an order names a parent as primary, that’s going to give somebody living with that parent better opportunity to have standing under 102003a9 or 102003a11. The reason is that these standing statues both focus on the quote, primary residence of the child. You know, in C.J.C, the mom had slightly more than 50/50 possession but not much more. Have the shoe been on the other foot and the father had died, and the father had a fiance the father’s fiance would not have had standing because he was not designated as the child’s quote primary residence.

So if you’ve made it through mediation, you’ve made it through a temp order, you’ve done discovery, your summary judgment wasn’t granted. You’re going to find yourself in a final trial in your parent versus nonparent custody case. Once again, just like with temporary orders, the primary focus on both sides needs to be on the presumptions that apply. If it’s an original suit, the nonparent must overcome both the statutory parental presumption and the constitutional fit parent presumption. If it’s a modification, where a nonparent is entering the litigation for the first time, the nonparent must overcome the constitutional fit parent presumption. If it’s a modification, where the nonparent was awarded rights for possession in the prior order, there are no longer any presumptions in favor of the parents.

If your case involves one or both of the parental presumption of the fit parent presumption, I highly recommend filing a trial brief setting out the applicable law and how you believe that should be applied to your case. Once again, I cannot tell you how many attorneys and how many judges I have come across in the past few years who do not understand this issue. I have read so many briefs, and so many motions filed by lawyers that do not properly set out the law for the judge. If you represent either the parent or the nonparent, and you can put together a brief that appropriately and accurately explains the law, your chances of success, in my opinion, are gonna go up dramatically.

If you represent the parent, your requested relief should be that the nonparents be denied rights in possession for failing to overcome the applicable presumptions. If you represent the nonparent, the requested relief should include requests for finding that the parent is unfit, the parent is not acting in the best interest of the child, that the appointment of the parents is managing conservators would significantly impair the child’s physical or emotional development, or that failing to give the nonparent access would significantly impair the child’s physical health or emotional development. No matter which side you’re on, remember, the burden is on the nonparent, not the parent when it comes to these presumptions.

So rather than asking the court to find that a parent’s fit, especially when that might be questionable, request to the court, if you represent the parent, find that the nonparent failed to meet a particular burden. When you’re representing a parent or the nonparent at trial, keep in mind the importance of preserving error during your trial. If the judge excludes important evidence ask to put on an offer proof. If the judge keeps overruling your objections, don’t give up by stopping to object. You would be waiving your right to object in the future on those issues. And remember, you can only appeal based on what’s in the record. So do everything you can to be sure that the appellate court knows what evidence was excluded and what that would have been. If you’re not an experienced appellate attorney, you might consider getting one involved for your trial to be sure error is properly preserved.

If your case happens to involve a jury trial, you need to establish what questions the jury can decide and what decisions the judge will make. Is the fit parent presumption, a jury issue or a bench issue? Although a jury can decide conservatorship, I would argue that whether a party can overcome the fit parent presumption is a legal question, not a fact question. As of the, you know, recording of this episode, to my knowledge, at least there’s not currently a pattern jury charge on the issue of the fit parent presumption. So it’s a little bit to be determined. When you receive a ruling after trial, if you’ve lost or you think the judge got it wrong on the issues of the applicable presumptions, I would file a motion to reconsider.

Use that opportunity to lay out all the applicable law and apply the relevant evidence that was admitted at trial, or the excluded evidence that you believe should have been admitted that would have supported your position. This gives the judge an opportunity to correct the wrongs with all the relevant law placed squarely before him or her. If your client lost a trial, you want to be very mindful of appellate deadlines and when they start to run. You do not want your client to miss out on the opportunity for a successful appeal because of a technicality. You’ve had a trial and you’ve lost. Now your only, your last step would be to file an appeal. Most family lawyers don’t do appeals because most family law cases are not really appropriate for appeal. Why file an appeal that’s going to take you 18 months if we can turn around and modify in a year.

But parent versus nonparent custody litigation is ripe for appeals, particularly if a nonparent is awarded rights and possession in a final order. Because that means that nonparent is going to be in forever going forward. It means that the parent has now lost the benefit of the fit parent presumption. Now, if a nonparent loses a trial, that also might be equally important for that nonparent to appeal because they may never have standing again related to this child. This could be the nonparent’s only chance making an appeal or the cost. There are a lot of appellate deadlines that get triggered once the final order is signed. So they’re not triggered by a court’s ruling. They’re not triggered by the issuance of a judge’s memorandum. It is the signing of the final order.

But if you already know what the judge is ruling and you know it is not favorable to your client, you’re gonna want to request a transcript as quickly as possible. You don’t have to wait for that final order to be signed. If you’re not going to handle the appeal yourself, and appellate attorney is going to want to review the record to see if an appeal is prudent and what appealable issues there might be. So the sooner you can get that transcript, the more time the appellate attorney will have to make appropriate recommendations.

If you get a copy of my ebook, or the hardcopy, we have a chart in there. That gives you kind of all of the appellate deadlines to go through and what the relevant rules of appellate procedure are. The burden of proof on appeal for issues like the fit parent presumption, just like with a mandamus, the burden or the burden of proof is abuse of discretion. Again, difficult standard to meet because family court judges have a lot of discretion. But we have seen appellate courts regularly reversing trial judge’s decisions in these types of cases.

One of the tough things about appeals is that they can take a very long time to progress through the system. It takes considerably longer for an appeal to be completed and to get an opinion than a mandamus. Some courts of appeals take longer than others to issue opinions. I’ve seen generally anywhere from 12 to 18 months is pretty common in various courts of appeals around the state. Once all the briefs have been filed, the case will be set for submission either with or without oral arguments. But it can even once it’s set for submission, it often takes many months for you to get an opinion. For example, one of my recent appellate cases on this issue was in the interest of A.V. That case had a trial in June of 2020. We filed our opponent’s brief in November of 2020. Oral argument was January of 2022. And we did not get an opinion until July 2022.

So appeals can be challenging, but I personally love doing them. I think they involve a lot of intellectual debates. And you know, it’s very, it’s fun to me to dig into these issues. If you’re not like that, if you don’t think these legal issues and appeals are fun, you know, I’d certainly welcome the opportunity to chat with you about a case that you think might be ripe for an appeal. So that pretty much brings us to the end of the process for parent versus nonparent litigation. There are a few things pending out there. There’s going to be more updates, new cases will come out. These areas of the law will continue to be refined. Texas Supreme Court currently is considering in the interest of S.K and L.K, which a CPS case involving the fit parent presumption.

The Texas Supreme Court also just requested a response in the interest of N.H, which was one of the cases that set out the significant impairment standard for overcoming the fit parent presumption. So it hasn’t gotten a full briefing yet. We haven’t filed a response yet. So it remains to be seen what the Supreme Court will do with that case. So I will certainly give you more updates when there are updates in the law. But for now, this is where we’re at. Again, if you are interested in some more information, you can get my free ebook on our website, Just click the free book link. And hopefully you’ll find it helpful.

Voiceover: The 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

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