Transcript

Holly Draper: The Supreme Court found that such an order, quote, profoundly interferes with a parent’s fundamental right to exercise care, custody, and control of her children. So there are those three buzzwords, again, care, custody, and control. These are the key elements of constitutional parental rights. Watch for those. Pay attention for those.

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: Hello everyone, and welcome to the Texas Family Law Insiders Podcast. I’m Holly Draper, your host, and I’m excited to be coming back to you today after taking a little bit of a hiatus for the summer. Been off doing some fun travel things, but I am back and excited to bring you this episode today with an update on Stary versus Ethridge. So I did have a couple of previous podcast episodes related to the Stary case. If you really want a deep dive on Stary, then I would suggest you go back and find those, too. But I will try and cover all the highlights today so that this will be a standalone episode and you can get the nuts and bolts of the Stary case just from this one episode.

So Stary versus Ethridge is a case that I recently took to the Texas Supreme Court, and since my last episode on this topic, we have gotten an opinion. And so today we’re going to go through that and let you know what has changed in Texas law with respect to protective orders as a result of the Stary case. Okay, so starting out, you know Stary is dealing with a final protective order that was issued under the Texas Family Code, under Chapter 85. In order to have a protective order entered, it’s going to require a finding that family violence has occurred.

At the time of the Stary case, you also needed a finding that family violence was likely to occur in the future, but that is no longer a requirement. And I think that makes this ruling or opinion from Stary that much more important. Normally, a protective order is valid for up to two years, but it can be longer if there is an allegation of a felony involving family violence. Violating a protective order is a big deal. It can get you arrested on the spot, can subject you to civil penalties and criminal prosecution.

So, as a general rule, you do not want to have a protective order issued against you. I have come up with a lot of constitutional concerns related to protective orders since I’ve been working on the Stary case. It really had never occurred to me before this case that we could have all of these constitutional issues. But there are definitely some general concerns, because these protective orders can fundamentally alter someone’s life.

The first concern is that, by statute, hearings on a protective order are held, supposed to be held within 14 to 20 days, depending on the size of the county. This means that you are not going to have an opportunity to conduct discovery. You’re not going to have much of an opportunity to defend yourself, because you have to do it so quickly. Protective order hearings are often restricted to a very short amount of time. Some counties where I practice might give you 20 to 30 minutes per side for a protective order.

And if we are talking about never seeing your children again, or something else, equally restrictive, or even not as restrictive as that, that’s a really short amount of time. Someone who is facing criminal charges, which is very common in protective order cases, is usually not going to be allowed to testify and defend themselves. I cannot tell you how many times a criminal attorney has said you are not going to let this person testify because you can’t take that risk. A protective order is a big deal, but going to prison is an even bigger deal.

So when you have to have a hearing that quickly, your criminal charges will not have been resolved. And I think there are a lot of constitutional concerns with that. In the criminal case, you have the right to plead the fifth, and in doing that, the court or the jury cannot hold it against you. But in a civil case, which a protective order is a civil case, if you plead the fifth, the court can assume that your answer would have been bad for you.

Another issue which we’re going to deep dive with Stary is that the burden of proof on a protective order case, because it is civil, is generally a preponderance of the evidence. We’ll get into that a little bit more, because that was one of the key issues in the Stary case. And the last constitutional issue that I see with protective orders, right out of the gates, is that you do not have a right to a jury trial in a protective order like you would in most other cases. So moving on more specifically to the Stary case.

This case came out of the 280th District Court in Harris County. If you are not familiar with the 280th District Court, this is a specialty court that hears only protective orders. So when I do trial work, I generally am practicing in the DFW area. Collin, Dallas, Denton, in those counties, and most, I think every other county in Texas, aside from Harris, if I am going to file a divorce and a protective order or a custody modification or a custody case and a protective order, those are going to go into the same court. They’re going to be heard by the same judge. They’re often going to be heard simultaneously.

So if you’re seeking temporary orders in a custody case and a protective order, those hearings are usually going to happen together, because the issues are largely, maybe completely the same. But in Harris County, if you file a custody case and a protective order case, your protective order case is going to peel off to the 280th and be heard strictly by that court. And your custody case or your divorce is going to go be heard by one of the other district courts.

I understand the rationale of why this court was created to assist victims of domestic violence quickly, to deal with a backlog, maybe of protective orders that were building up in the courts. But in the end, I think there are a lot of problems with this court, and the Stary case is a really good example of that. So, underlying case, these parties had entered into an agreed divorce back in 2018 that included provisions for conservatorship, a 50/50 possession schedule, and child support for their three minor children.

In March of 2020, there were some allegations of abuse made against the mother with respect to one of the children. The Father filed a protective order against the mother on behalf of himself and the three children, but he abandoned his request for protective order for himself at trial and only proceeded with requesting a protective order on behalf of the children. I think it’s very noteworthy that he requested a protective order longer than two years in his pleadings, but that was it.

He did not request a lifetime protective order, simply that it be longer than two years. During his testimony, he testified that he thought it should last until the children turned 18, after which they could decide for themselves what they wanted to do. But after this trial, the trial court ended up issuing a lifetime protective order for all three children for the duration of their lives against the mother. So, as an appellate lawyer, most of the time, I’m not the trial court lawyer, so I have to go back and read the transcript, read the record, see what happened in the court, to see if there are any appealable issues. I’m going to say that I have never been so shocked by a record as I was by the trial court record in the Stary case. You know, this judge very clearly let everything in for the Dad, let nothing in for the mom. You know, all the objections that dad’s lawyer made were sustained.

All the objections that mom’s lawyer made were overruled. You know, with very few exceptions, and the level of evidence was relatively minimal as far as what was in the record against the mother. The only person to testify against the mother was the father, who did not witness any of the incidents that were alleged. So when you appeal, the first step is going to the Court of Appeals. So we ended up in the First District Court of Appeals in Houston.

And interestingly, the father did not bother to respond in the Court of Appeals. And I was absolutely shocked that we didn’t win there. We got a majority and a dissent in December of 2022 with a two-to-one opinion finding that the lifetime protective order did not amount to a termination of parental rights, and upheld the trial court’s opinion.

So when a protective order is granted in Texas, it generally lasts two years or less, and the burden is then on the applicant to prove that an extension is needed. However, that burden is shifted when, as in Stary, the protective order extends longer than two years. Only two motions to vacate are allowed under the Family Code, which places the burden on the party enjoined by the protective order to prove it’s no longer necessary, which is not easy to do, as opposed to placing the burden on the applicant to prove that it is still necessary.

So after we got our opinion from the Court of Appeals, we decided that we were going to move forward with Texas Supreme Court. Felt very strongly that this was a really important issue, especially learning about what’s happening on the 280th in Harris County. And so we pushed forward in filing in the Supreme Court. The issues that we raised, we raised four issues on our appeal, but really two of them were the crux of the case.

The first was we argued that the trial court abused this discretion and violated the mother’s constitutional rights when it ordered a lifetime protective order for her children, constituting a de facto termination of her parental rights without due process. The second issue was that the trial court abused its discretion and violated the mother’s constitutional rights when it ordered a lifetime protective order without proper due process considerations based on a felony charge that had not been adjudicated.

So a little bit about the process of how you get your case in front of the Texas Supreme Court for them to make a decision. So in the Court of Appeals, they have to take your case. If it is appealed, they are going to consider it, and they are going to issue an opinion one way or another. The Supreme Court of Texas, just like the Supreme Court of the United States, is not that way. They do not have to take every case; they take a relatively small percentage of the cases that are filed. Every year, about over 1000 cases are filed in the Texas Supreme Court, and only around 100 are granted. Which means they’re taking the case.

That doesn’t mean you’re going to win, just that they are going to consider the case. In order to get to oral argument, you need to have at least four justices who want to take your case. There are nine justices on the court, and by the time you get that far down the pipeline, you need at least four of them saying, we want to grant the petition, and we want to give you oral argument. Much as happened in the Court of Appeals. The father in this case did not bother to participate in the Supreme Court case. He did not file a brief. It’s why, in part, why this case took a really long time to make its way through the Supreme Court. The Court wanted the father to respond. They want everything fully briefed, so that they are seeing all sides of the issue.

So originally it was, hey, we want you to file a response. It was crickets. Then they would send out another, hey, we weren’t kidding. We really, really do want you to file a response. Still nothing. Eventually, they wanted to take this case badly enough that they appointed an amicus to defend the Court of Appeals majority opinion. They did this by sending a letter to the appellate section of the State Bar and saying, hey, you need to find somebody that’s willing to do this pro bono. So that happened, and now we were going to have somebody arguing on the other side to have it fully briefed for the court.

Voiceover: This episode of the Texas Family Law Insiders 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 draperfirm.com or call 469-715-6801.

Holly: In addition to that amicus, which is really I would consider, basically like being the party, it wasn’t what we would normally think of as an amicus brief, we had three other amicus briefs filed in this case. Two of them were filed by organizations agreeing with our position, and one of them was filed on the other side. In order to prepare for oral argument. There was a lot of brainstorming. There was a lot of working with a team of attorneys, you know, brilliant attorneys who know the law, who know appeal.

Coming up with our strategy, trying to figure out how we were going to argue in this case. What were the most difficult issues going to be that we were going to have to deal with? And how are we going to address those when the court inevitably brought those up? We had our oral argument back in October, and it actually was not at the Supreme Court. They they go on tour twice a year to go out to other places in the state to let more people get a chance to experience what’s happening in their court.

So, for our case, they picked us to go on tour to the University of Houston Law School, and we did our argument there. It was a really cool experience. There were a few 100 people there to watch. I ended up arguing also with former Texas Supreme Court Justice Eva Guzman, who was one of the signatories on one of the amicus briefs in the case. So I did my time, gave a little bit of time to her, and then the amicus that was appointed for the other side did their response.

It seemed really clear from the questioning of the justices during our oral argument that they did believe that this was an effective termination of parental rights. The first court of appeals, in their majority opinion, found it was not a termination because the mom had retained, quote, some rights. Those rights being the right to talk to a doctor or the right to access school records, things like that, but the key rights of care, custody, and control were all taken away from her.

So throughout any parental rights constitutional case law, whether it is in the Texas courts or in the United States Supreme Court, you’ll hear those terms care, custody, and control, over and over and over. And so we really decided to focus our argument at oral argument on those key components of parental rights. If you take those away, you are effectively terminated. Justice Young made a comment during or argument, saying, I’m happy to talk to my kids’ dentists, but that’s not the same as having a relationship with my children.

And Justice Blacklock made a comment that, you know, he would rather spend two or three years in jail than lose the ability to have a relationship with his children. What we thought was going to be the hardest question for us was asked by Justice Lehrmann, and it was why doesn’t the ability to modify save this from being a termination? We knew this was our toughest issue, but ultimately, we argued that the constitutional violations happened in the initial proceeding, and that has now shifted the burden back to the mom to try to claw back her rights.

And the ability to do that is very limited under the Family Code, where you can only try to vacate it twice. It really is the ability to modify that is granted in the code for this type of a protective order is not sufficient to save it from its constitutional infirmities. So we ordered that the order should be vacated completely and not remanded, because this mother had already it almost been five years that since she had seen her children, by the time we had her oral argument, and that the process was so fundamentally flawed that this should go away.

So May 2, 2025 we got our opinion out of the Texas Supreme Court in Stary versus Ethridge. It was a 9-0 opinion written by Justice Bland. Fun fact, my other Texas Supreme Court case was in re C.J.C., also a 9-0 opinion, written by Justice Bland. The court did reverse and remand, as opposed to reverse and vacate. I’m not remotely surprised that’s what they did. I understand why they did it. They don’t want to have it out there that they’re just releasing child abusers to their children without any guardrails or protections in place.

So by remanding it, they’re giving the dad in this case an opportunity to go retry the case under the new standard to see if it really justifies having a longer protective order. But ultimately, that protective order that was issued does get vacated, and if the father wants to proceed, or I guess, if any of the children that have become adults since this began want to proceed, they will have the opportunity to do that in the trial court.

So the key holding from the Texas Supreme Court was we hold that constitutional due process requires clear and convincing evidence to support a protective order prohibiting contact between a parent and her children under the statute authorizing protective orders of longer than two years. So remember earlier I mentioned that the burden in civil cases was preponderance of evidence, and this is a really, really low burden.

You know, 50.1% gets you a preponderance of the evidence finding. Clear and convincing evidence is a much, much harder burden to meet, and the United States Supreme Court has held that termination of parental rights requires a clear and convincing burden of proof, and the termination statute in Texas accounts for that. When you have a termination case, it’s going to last 12 to 18 months. You’re going to have an opportunity to do discovery.

You’re going to have a clear and convincing evidence burden of proof. You’re going to be entitled to a jury. There are a lot of things that are built into a termination proceeding that were not built into the protective order statute. And ultimately, you know, our position was, this was a shortcut end-around of the termination statute to effectively terminate parental rights. With this short hearing, with short notice all those things.

The Supreme Court found that such an order, quote, profoundly interferes with a parent’s fundamental right to exercise care, custody, and control of her children. So there are those three buzzwords again. Care, custody, and control. These are the key elements of constitutional parental rights. Watch for those. Pay attention for those. So what does the Stary opinion mean? Could this case go to the United States Supreme Court?

In theory, it could, because it was a constitutional case. Now, I believe we’re past the time when that could happen. Realistically, it was never going to happen anyway, because, you know, the father didn’t bother to participate in any of the prior appellate courts. Will there be legislative changes as a result of this? I would say there has to be legislative changes, because this opinion, effectively says that the current statute as it stands, would be unconstitutional with the preponderance of the evidence burden of proof.

But until we get legislative changes, we have to overlay the Stary opinion onto our statute as requiring the clear and convincing evidence in order to get any protective order that is longer than two years. We’re not just talking about lifetime protective orders. We are talking about any protective order longer than two years. I think is really important for anyone who already had a protective order longer than two years issued against them with respect to their children.

And that’s important. This does not apply to other types of protective orders. Again, boyfriend versus girlfriend, husband versus wife, we are strictly talking about when parental rights are implicated. And so in those cases, if you have a protective order against you, that is for longer than two years, or attorneys, if you have a client who has a protective order longer than two years, you should be moving to vacate that protective order based on Stary. And that should be vacated.

And maybe there’ll be another trial to allow the applicant to make their case, to see if they meet the burden. But none I know, especially out of the 280th in Harris County, there are a lot of protective orders out there longer than two years. I have no idea how many, but I know the number is really, really big. So Harris County lawyers be watching for these types of cases. Be watching for people. Many of you have represented people because you’ve reached out to me to say that you had these types of protective orders issued out of the 280th, don’t move to vacate those.

The next issue, I think I really love diving into these constitutional parental rights type cases. And you know, with C.J.C. and Stary, I think we could see these two cases converge. So if you think back on C.J.C., we never really got, we never got an answer from the Texas Supreme Court as of yet as to what is the burden of proof to overcome the fit parent presumption in parent versus non-parent custody cases.

After working on Stary and deep diving into those constitutional issues and seeing how at least one court of appeals opinion that has come out saying you need clear and convincing evidence to overcome the fit parent presumption, I predict that C.J.C and Stary are going to converge, and we are going to have a clear and convincing evidence requirement in parent versus non parent custody litigation.

So if you are representing parents against non-parents in cases where the fit parent presumption is applicable, be thinking about making these types of arguments in your cases. Also in chatting with some other lawyers, I think there are other types of cases related to rights where we can see these constitutional issues popping up. We see cases where a judge removed all of a parent’s rights or all of their possession like they have nothing with respect to their kids, in the course of modification.

Now, modification does allow more opportunities to modify than a protective order, but there are still constitutional issues at play when we are talking about parental rights. So I would strongly consider making constitutional arguments in those types of cases. We have some situations where courts are removing important rights, or they are essentially delegating important rights to a third party.

For example, educational cases where if the parents can’t agree, the judge says, this third party, the counselor or some other educator, is going to get to make that decision. Well, that court has now delegated a really important parental right to a third party. Can that be done? So I think I would definitely be paying attention to the key parental rights of the people that you represent, of care, custody, and control. How heavy is the evidence in support of removing one of those rights or possession? And are there constitutional arguments that you should be making?

So that pretty much wraps up our discussion of Stary versus Ethridge and some ancillary issues to that. If you have questions about it, feel free to reach out to me. I love chatting with other attorneys about these types of issues, particularly constitutional parental rights issues. And if you enjoyed this episode, please go leave us a five star review, so that others can enjoy this episode and future episodes as well. Thank you.

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 www.draperfirm.com.