An End-of-Year C.J.C Update

Where does post-C.J.C case law stand at the end of 2023?

In this episode, I give an update on post-C.J.C cases since my last episode on this topic. 

Join me for an overview of each case and an analysis of how they could impact future parent vs. non-parent child custody cases. 

I’ll also cover the fit parent presumption and where the Texas Supreme Court stands on C.J.C at the end of this year.

Mentioned in this episode:


Holly Draper: Hey everyone, it’s Holly Draper. I’m the CEO and Managing Partner at The Draper Law Firm. And I wanted to pop on today and do a 2023 C.J.C case law update for everyone. If you’re new to the podcast, or you aren’t familiar with me, I was the attorney for the prevailing father in both the trial court and the appellate court, Texas Supreme Court for C.J.C. And I have subsequently represented a lot of generally parents in appeals related to non parent custody cases.

You can find those in re C.D.C, in the interest of A.V, in the interest of N.H, there might be others out there, but those are the big ones that come to mind. So this is my wheelhouse. And I really try to stay up to date on all the case law updates that come out related to C.J.C type issues. And I’d like to keep you all informed of those as well. So we’re gonna go through the latest updates that have happened since I last recorded a podcast on this topic. If you haven’t read or not read, but listen to the prior podcast, I think I’ve done three prior podcasts episodes on C.J.C. Subsequent cases to C.J.C and parent versus non parent child custody litigation.

So this is going to be the latest one in that series. If you didn’t catch those, you might want to go back and get up to speed before you listen to this one. But otherwise, we are ready to get going. The first case is in the interest of J.O.L and I.C.L. This case out of the San Antonio Court of Appeals cited at 668 Southwest 3d 160. In that case, the mother sought to modify a prior order seeking to be named the primary conservator rather than the father. The paternal aunt and uncle intervened, seeking to be named sole managing conservators with the mother having only supervised visitation.

In that case, the trial court declined to apply the fit parent presumption and appointed the aunt and uncle as managing conservators with mother as a possessory conservator. The court of appeals found that because the mother was a joint managing conservator in the prior order, the fit parent presumption had to be applied to her. The mother argued that the trial court erred by failing to include the fit parent presumption in the jury charge as an instruction.

However, the court of appeals found that because she did not object to the jury charge, she waived that complaint. In this particular case, she was still able to argue that the evidence was legally and factually insufficient to support the jury’s verdict because an uncle failed to overcome the fit parent presumption. Regarding the legal sufficiency of the evidence, the court of appeals said, quote, we will uphold the jury’s finding if there is more than a scintilla of competent evidence that supports it.

The court emphasize the fact that we still do not have clear guidance as to what level of proof is needed to overcome the fit parent presumption. And it goes into a nice summary of the various cases on this topic. If you want a very quick post C.J.C refresher, this case is a really good one to read because it does have such a nice short, concise summary of the relevant cases. Here, the court of appeals ultimately concluded that the aunt and uncle failed to overcome the fit parent presumption because, quote, there was no evidence to establish physical abuse, severe neglect, abandonment, drug or alcohol abuse or immoral behavior.

Instead, the verdict reflected the jury’s preference and contravention of the deeply embedded presumption that, quote, the best interests of the child is served by awarding them to a parent. When I first read this opinion, I was a little nervous when I saw the quote about the scintilla of evidence standard being used in the context of the fit parent presumption. However, it does appear here that the court of appeals realized that this is a high constitutional burden on the non parent, and at the end of the day found that the non parent did not overcome that burden.

I also think this case is interesting. I wish there was a little more information about how the fit parent presumption was dealt with in this jury trial. I’ve had a lot of attorneys over the last couple of years kind of talk to me and spitball ideas about how we should be handling this in a jury trial. Is it a fact issue? Is it a legal issue? I’ve always really taken the position that this is a legal issue. And here because we’re looking at a legal sufficiency of the evidence claim, I think that supports the position, that’s a legal issue. But beyond that, we really can’t tell how the court dealt with it in a jury trial.

The next case is one that I highlighted on my list, I think this case is wrong. I think this case is very, if you represent a nonparent, you will love this case, and you can use it and find it very helpful. The case is in the interest of K.L.C. It’s out of the Corpus Christi Edinburg Court of Appeals, and the site is 672 Southwest 3d 734. So this was a case where a grandfather filed to modify a prior agreed order that named him as a joint managing conservator with the mother and the father. So prior order, grandfather was already named a joint managing conservator, but so were the parents.

So that prior order did not include an explicit finding that either the mother or the father were unfit parents. Under agreed temporary orders, the grandfather was given the exclusive right to designate the primary residence, and the parents had limited access. Following trial, the trial court found both parents to be unfit, but appointed the grandfather and the father as joint managing conservators. With father having a standard possession order. The court of appeals ultimately found that the fit parent presumption did apply in this case, because the father had been previously appointed as a joint managing conservator, and had not been explicitly found to be unfit.

This is where I completely disagree with this opinion. In my opinion, in the prior order, the grandfather could not have been named a managing conservator, but for a finding that the parent was unfit. And even though it was a prior agreed order, and obviously there was no finding at all because there was no judge or jury, in every discussion I’ve had with other attorneys over the years about res judicata as to this issue, having the grandparent named as a managing conservator in a prior issue should be res judicata as to the issue of the fit parent presumption.

This is why. When they reached this agreed order, that named the grandfather as a managing conservator, we have to assume that there was some sort of reason. And there was some evidence that would have been presented at the trial if it had happened in the prior case, on the evidence of a parent, both parents being unfit. Once they entered into that agreed order, in a subsequent trial, like the one that happened in this case, the grandfather is barred from introducing evidence before the prior order. So he is barred from introducing any evidence he could have used at that time to prove the parent was unfit.

So if we look at V.LK., which was the standard case, pre C.J.C for modifications, I think under V.L.K, it’s that this is res judicata and the fit parent presumption does not apply. Obviously, the Corpus Christi Edinburg Court of Appeals does not have the same opinion. This is the only case out there right now that says this. But if you are within that court of appeals, I would be all over this, if you’re representing a non parent. I’m sorry, if you’re representing a parent. And even if there was a non parent, in the prior order, if that parent was JMC, you’re gonna use this.

It’s not as strong if you’re in any other court of appeals jurisdiction, but again, there are no other cases that address this issue. So if you are representing a parent, and the non parent was a JMC with the parent in the prior order, use this one to argue that the fit parent presumption should be used again in your subsequent case. Now, that assumes that there was no finding in the prior order. And let’s be honest, most of our prior orders, especially if those orders are coming pre C.J.C are not going to include an explicit finding that apparently was unfit. So we shall see what happens on this one and are there any subsequent cases that challenge this opinion.

The next case is Johnson versus Kimbrough out of the Austin Court of Appeals. It’s not a published opinion, at least not yet. It’s dated September 20, 2023. In that case, the maternal great grandmother, who had previously been appointed as a child’s joint managing conservator with the mother filed to modify after the child’s mother died. The great grandmother sought to be appointed sole managing conservator, and alleged the father had a history or pattern of neglect.

The Court of Appeals found that the father who was a possessory conservator under the prior order, was not entitled to the benefit of the fit parent presumption because, quote, the fit parent presumption does not apply to a chapter 156 modification proceedings, where the parent seeking modification was not appointed managing conservator under the existing order sought to be modified.

Next, we have in the interest of R.W.N.R out of the Waco Court of Appeals. Again, unpublished opinion, at least as of this recording. It’s dated October 25, 2023. In that case, the mother appealed the trial court’s order appointing her and the grandmother as joint managing conservator and giving the grandmother the exclusive right to designate the primary residents. The mother argued the evidence was legally and factually insufficient to overcome both the constitutional and statutory fit parent presumption. The court of appeals agreed.

If you aren’t familiar with the difference between the constitutional and the statutory fit parent presumption, this is an issue that I have gone into at length in the prior podcasts on this topic. And I also go into it at length in my book, which you can get a free copy of on our website. So go check that out if you don’t know what we’re talking about here.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. Providing family law appellate representation for non parent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit or call 469-715-6801.

Holly: Anyway, back to interest of N.W.N.R. Sorry, R.W.N.R, the evidence presented showed a history of mental health concerns for the child, some related to her mother. The mother often left the child with family members and needed help in part due to her being legally blind and unable to drive. The grandmother had primary custody under temporary orders. But the mother seemed to do well with her visitations and bonded with the child during that time. The child’s therapist raised concerns about the mother and opined that it would be in the child’s best interest to live primarily with the grandmother.

The therapist further testified that the mother’s appointment as a managing conservator would lead to physical and emotional harm to the child. Reasons included the mother’s failure to follow proper protocols for feeding a child with food aversion. The fact that a change in the child’s environment might lead to increased anxiety for the child. And because mom had a history of leaving the child, the child’s best interest would be served by leaving him with the grandmother who had proven to be the only consistent figure in his life.

This court analyzed the constitutional fit parent presumption and the statutory parental presumption separately, which you know, yay, congratulations, I’m so excited that we’re seeing courts do this. Sometimes they do not. In analyzing the fit parent presumption, the court focused on the United States Supreme Court’s definition of a fit parent from Troxel, which is providing, quote, adequate care to a child. The court specifically pointed out the fact that the grandmother was named a joint managing conservator and temporary order did not mean she did not have to overcome the fit parent presumption at a final trial.

This is a question that I hear a lot and a common misconception among attorneys and judges out there is if you have a temporary order that names a nonparent the managing conservator, and names a parent as a possessory conservator, had the fit parent presumption been overcome and do you still have to overcome it in a final trial? So this case really lays that out very clearly. Temporary order does not mean it’s over, and it still has to be overcome at final trial.

The court noted that the relevant time period for assessing parental fitness is the present, and past conduct alone is not enough. However, evidence of a parent’s past conduct coupled with more recent transgressions can support a finding of parental unfitness. The court relied heavily on the case of in the interest of A.V, which was one of my post C.J.C cases out of the Dallas Court of Appeals and said like the child and A.V, R.W.N.R has been fed, housed and cared for exclusively by his grandmother at times in the past.

But just as the Dallas Court of Appeals cabined its analysis of parental fitness to the mother’s circumstances at the time of trial, and not solely to her period of instability in the past, we are resolved to look for evidence of present parental unfitness that would support the trial court’s findings. And while evidence of parental unfitness might be found in the mother’s more distant past, such as before the SAPCR filing, that past conduct alone cannot support the trial court’s finding almost three years later, that the mother cannot adequately care for the child today.

I think this language is particularly interesting and concerning if you are a non parent. It really emphasizes the fact that just because someone might be able to overcome the fit parent presumption at the time of filing, they might not be able to overcome it at the time of trial. There was another case that I’ve discussed before where this issue came up. it was in the interest of S.K and L.K. That one was a CPS case where we saw a parent who was unfit enough to have his child cared for by somebody else for over 12 months, but got his act together during the course of that case, and when it came to the time of trial was considered to be a fit parent.

I think when you are representing non parents and you’re trying to overcome this burden, if you have a lot of evidence at the time of filing, you probably need to get yourself a really quick trial date. Because the longer that case languishes, the more time a parent has to get their act together and become quote, fit, at the present time. As to the statutory parental presumption, the court of appeals agreed that the grandmother did not overcome the requirement of showing that appointing the mother as sole managing conservator would significantly impair the child’s physical health or emotional development.

The court again focused on the fact that past behavior is not enough. Proving significant impairment that rises above speculation of possible harm requires a showing of specific behavior traceable to the parent’s unfitness as measured in the present time, and not solely to uprooting the child from his or her environment. Even though uprooting a child can cause anxiety in children, if you cannot trace that to a parent’s present unfitness as measured by their recent conduct in the form of a specific act or omission, then such evidence will not rebut the parental presumption.

And the last case we have to talk about today is in re C.M.B.H out of the Texarkana Court of Appeals. Also not a published opinion as of this recording. It’s dated November 20, 2023. In that case, the grandmother filed suit seeking sole managing conservatorship and a TRO granting her exclusive custody pending a hearing. In her affidavit, the grandmother explained the child had lived with her for the past two years, and she had been the child’s caretaker. The mother had never had the child for more than 72 hours at a time until one day the mother picked up the child, removed her from school and did not return her to the grandmother’s care for several weeks until the TRO was granted.

Mother said she and father should be named joint managing conservators with mother having the exclusive right to designate and father said he should be given the exclusive right to designate. At the hearing, the grandmother testified that mother was unable to provide for the child, that she’d had to help mother with money and food and was taking the child to the doctor. Grandmother was concerned mother had been smoking marijuana. Grandmother had no problem with the parents having visitation but she wanted the child to remain stable and to stay with her.

When asked what significant impairment it would cause for the child for her parents to raise her, grandmother’s only concern was that the child did not know either of them that well. The aunt who had raised the child for the first two years of his life, testified that the mother smoked marijuana during her pregnancy and that mother had told the doctor she had quote, mental issues. The trial court gave sole managing conservatorship to the grandmother and possessory conservatorship to the parents because the grandmother and aunt had raised the child for the first four and a half years of her life.

And if I didn’t mention it already, this is a temporary order. This is a mandamus case. And we’re talking about a temporary order giving sole managing conservatorship to the grandmother. The judge noted that she wanted the parents to step up and show they could raise this child before they came back to court for final trial. Court of appeals conditionally granted the mandamus. Basically, the court seems to use the fit parent presumption and the parental presumption from 153.131 of the Texas Family Code interchangeably in this case. As I mentioned before, when I was applauding a different court of appeals for are laying out the two distinct presumptions, this is more common, I think amongst a lot of attorneys and some judges is to use these kind of interchangeably and not distinguish between the two.

So remember, there are two distinct standards, and sometimes they overlap. In this particular case, it was an original suit. So 153.131 is relevant, and we have the overlap of these two parental presumptions in favor of parents. However, remember that 153.131 would not prevent a court from awarding the non parent rights and possession. It only prevents the court from awarding managing conservatorship. There isn’t any analysis in this particular case that discusses whether or not the grandparent could have been a joint managing conservator with a parent or whether or not the grandparent could have been a possessory conservator or had some periods of possession. So really, it just says it’s overturning the granting of sole managing conservatorship to the grandmother.

So that is the rundown of the most recent relevant post C.J.C cases. I think the most noteworthy things about the current state of this area of the law as of December 2023, when I’m recording this, is the fact that we still haven’t had the Texas Supreme Court lay out the standard for overcoming the fit parent presumption. N.H is a case, one of the cases that I handled is currently pending in the Texas Supreme Court. It’s been pending there for quite some time. Will they take it, will they not? We shall see. My theory is they’re waiting for another case.

So if you have a good C.J.C type case to take up to appeal and you want some help give me a call. Because I love doing this. And we’d love to get that case in front of the court so we can get that standard for everyone and make it super clear. I think it’s also very consistent among all of these cases, just how difficult it is to overcome the fit parent presumption. With the requiring that it be present fitness and not looking so much at past acts, I think that makes it really difficult for non parents. I think the requirement of essentially showing harm or showing specific acts is a really high burden for non parents to overcome.

So hopefully, whether you’re representing a parent or non parent in any particular custody case, hopefully this information is helpful. And you know, together we can all get this standard figured out and keep going forward. If you have questions about this area of law, feel free to reach out to me. I’m pretty easy to find on Facebook or through my website and I’d be happy to chat about it. And if you enjoyed this podcast, do me a favor please. Go leave us a review so that will help others find our podcast and help us get some traction. Thanks everyone.

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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