Transcript

Holly Draper: If you have a parent versus non-parent case out there, the clear and convincing evidence standard now is going to apply to that case. This is a very high burden to overcome. Much, much more difficult than the preponderance of the evidence standard. It’s going to be a tough road for non-parents to get any access here.

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: Hi everyone. Welcome to the Texas Family Law Insiders podcast. I’m Holly Draper. I’m the CEO and Managing Partner at the Draper Law Firm, and I’m coming to you today with a super important update related to parent versus non-parent child custody litigation and laws that were passed in the last legislative session. If you don’t know me, I was the attorney who handled the in re C.J.C. case all the way from the trial court up until the Texas Supreme Court.

And I have a lot of knowledge related to parent versus non-parent custody litigation. So I really wanted to bring this to you, tell you all the specifics. I cannot underscore this enough, these are some very big changes that are going to really restrict what non-parents can do in Texas and custody cases. And I would consider these changes to universally be a victory for parental rights and for parents who do not want non-parents involved in their custody case.

In the two previous legislative sessions before this one, I had a lot of involvement with lobbyists. I even testified in the legislature trying to get C.J.C. codified, and it really never went anywhere. And by the time you went through all the back and forth of you know, we want this, they want this, it was just not even worth trying to get it passed.

I did not know that this was happening this legislative session from talking to some other people, it seems like it kind of went under the radar. I found out about part of it the week before Advanced. I found out about the rest of it at Advanced. So if you don’t know about this, I’m not surprised, because I didn’t know about it either. And I really try to stay on top of this particular area of the law. So let’s dive in.

The first changes relate to the standing statute under 102.003 of the Texas Family Code. Standing is the ability to file suit. If you do not have standing, you cannot file a lawsuit. And there were several standing statutes that were changed specifically to address parent versus non-parent custody situations. And as a whole, I would say that these changes made it more difficult for non-parents to have standing to file a lawsuit.

The first change was to 102.003a9. This statute, until this change, was really governed by the Texas Supreme Court case of in re H.S. The precursor to C.J.C., which was in re Clay, was about standing, and this was the statute related to the non-parent fiancé that was addressed in in re Clay. The old statute gave standing to anyone who had, quote, actual care, control, and possession of the child for at least six months, ending not more than 90 days preceding the date of filing of the petition.

In the precursor to C.J.C., so we had two mandamuses in that case. The first one was in re Clay. The second one was in re C.J.C. In in re Clay, we tried to argue that the fiancé didn’t have standing because the child was living with mom in the primary residence, and he was living there for eight or nine months, and the child was there 54% of the time during that eight or nine months. The other side argued that things like getting up with the child occasionally during the night or giving her chocolate milk for breakfast, that those types of relatively menial involvement were enough to give him standing under the old statute and under in re H.S.

Because of that, our client and C.J.C had to go through litigation with the fiance, and that led to the second mandamus of C.J.C. So the new version of 102.003a9 gives standing to a person other than a foster parent or a caregiver who had a child placed with them by CPS to someone who has had exclusive, nderscore, underscore, underscore the word exclusive, care, control and possession of the child for at least six months, ending not more than 90 days preceding the date of the filing of this petition.

Changing that word from actual to exclusive is very significant. You know, there are cases, in re Clay is the perfect example where mom was there. Mom was the one primarily taking care of the child, and the fiancé just happened to be there and helping out. In the same way that you know, maybe a live-in boyfriend or girlfriend, maybe a roommate, anyone living in that house would have met that standard under in re Clay, under in re H.S. of actual care, control, and possession. But having exclusive care, control, and possession is a much, much, much harder burden for that non-parent to meet.

And in in re Clay, that would have ended the case right there. The fiancé never would have gotten in. We never would have had to get to C.J.C. So we still have, this is a really interesting point here. Under Subsection B of 102.003, it says that in computing the time necessary for standing under 102.003a9, among others, the court may not require the time be continuous and uninterrupted, but shall consider the child’s primary residence during the relevant time preceding the date of commencement of the suit.

I don’t know how in the world these two things can be reconciled. How you can have someone having exclusive care, control, and possession, but it’s not for consecutive time. This is something that is definitely going to play out in appellate courts in the future. I think you’re going to see it playing out in your trial courts. And I got a real issue with this provision, and I guess we’ll have to wait and see what happens. So the next, next statute that was changed was the old statute of 102.003a11. This was removed completely.

This provision gave standing to someone who lived in this primary residence of the child, with the child and the child’s guardian, managing conservator or parent, for at least six months, ending not more than 90 days preceding the filing of the petition. And, the guardian, managing conservator, or parent who was also living in the house has died. I really thought way back when that in re Clay was going to be about this statute, because there were no constitutional protections in there whatsoever.

Any random person who happened to be living in the home would have had standing to file suit under the old provision if the parent died. So this has been completely removed. This was referred to as the step-parent statute, even though it didn’t require someone to be a step-parent. You just had to be living in the home. So, as far as parents are concerned, I would say getting this statute removed is a huge win.

The next change on this standing statute was 102.003a12 before. Now it is a11. This is a big deal when we’re talking about CPS cases. This statute used to give standing to a foster parent who had the child for at least 12 months, ending not more than 90 days preceding the date of filing, and what we would see was lots of foster parents intervening for custody in cases where a CPS case went longer than 12 months. Or when a child was returned, the foster parent would have had standing to file suit and seek custody if they’d have the child for more than 12 months.

There are big changes here. First, they added in not just a foster parent, but also a relative or designated caregiver, which I would say is a kinship placement, not just a foster parent. So, anyone who has a child placed with them during a CPS proceeding, this provision is going to apply to them.

And then it also added that they do not have standing if the child has been returned to the parent under Section 263.403 or the child was placed with a parent, and the suit by CPS has been dismissed under Section 263.401. So I think this is going to be a big deal for those in the foster parent community, and it’s going to make it a lot harder to have an adoption by foster parents if we have parents that are trying to get their kids back and want to still be parents.

The next standing change, 102.003a13 is now 102.003a12. It is used to allow some, the old statute allowed someone within the third degree of consanguinity to file suit if the parents had died, both parents had died. This was changed to expand to a fourth degree of consanguinity. So what this really means is that now great-grandparents and cousins can file suit. If both parents have died, they can file suit for custody.

So one important note is that these changes to 102.003 with respect to standing apply to suits filed on or after September 1, 2025. This does not impact suits filed before September 1, 2025. Now, if I’m representing a parent against a non-parent, and the lawsuit was filed before this date, I’m certainly going to argue this person wouldn’t even have standing anymore based on the changes that the legislature has made.

The next addition is super, super important for parent versus non-parent cases. 102.0031 has been added. This requires an affidavit for any non-parent seeking standing under one of the 102.003 provisions. It doesn’t matter which one, any non-parent that is seeking to file suit under 102.003 must now have an affidavit that attack attests number one, denying the relief sought would significantly impair the child’s physical health or emotional development, and two, it must contain facts supporting the allegation under number one.

Under Subsection B, the court shall, that means, must deny the relief sought and dismiss the suit or strike the intervention, unless the court determines, based on the affidavit, that the affidavit contains facts adequate to support the allegation that denying the relief sought would significantly impair the child.

So, before, this is very similar to what we already had in the grandparent access cases, but now it’s going to apply to all non-parent custody cases. This is a really, really big change. And I have been involved in many grandparent cases where we were able to get the grandparents kicked out, right out of the gates, by moving to strike them based on an insufficient affidavit. So there’s a lot of case law out there on the grandparent side that you can look to if you’re representing a parent in this scenario to strike the non-parent. Super, super important.

This new rule for affidavits applies to any suit pending as of September 1, 2025, not just two suits filed on or after September 1, 2025. So what does that mean? It means if you represent a parent, and a non-parent has filed suit or intervened, you move to strike them. As soon as this law goes into effect, you move to strike them for not having this affidavit. And if they do the affidavit, you want to say that it is insufficient to show significant impairment.

What does it mean if you’re representing the non-parent? You better get that affidavit filed, even though you filed your suit, however long ago, you need to amend it, and you need to attach an affidavit that is going to show significant impairment. Otherwise, you’re going to get this missed from this lawsuit before you ever make it to trial.

Okay, on standing, there was one other change to 102.004. Relatively minor. This is just changing the standing for parents and grandparents and other relatives, I mean, from third degree of consanguinity to fourth degree of consanguinity. But that statute already had the significant impairment requirement. So now, when you can show significant impairment, we’re letting great-grandparents and cousins file suit in 102.004.

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 draperfirm.com or call 469-715-6801.

Holly: Okay. Moving on to the codification of C.J.C. and the fit parent presumption. It has taken five years for us to get here, but now, five years post C.J.C., we finally have an answer to what Justice Lehrman had brought up in her concurrence in C.J.C. was, how do we overcome the fit parent presumption? And if you’ve been following what I have been doing on Stary, and you may have heard me speak on it or do a podcast on it, I predicted that Stary and C.J.C. were going to interact or intersect, and we were going to end up with a clear and convincing standard for the fit parent presumption. And guess what? I was right.

That is what the legislature has done here. We did not have to wait for the Texas Supreme Court to weigh in on it. So 153.002 says that we’re dealing with the best interest of the child, and that there is a rebuttable presumption in a suit between a parent and a non-parent. 153.002a says the best interest of the child shall always be the primary consideration of the court in determining issues of conservatorship and possession of and access to the child.

That is not new, but what is new is Subsection B, which says in a suit between a parent and a non parent, it is a rebuttable presumption that one, a parent acts in the best interest of the parent’s child, and two, it is in the best interest of the child to be in the care, custody, and control of a parent.

Subsection C, in a suit between a parent and a non-parent, the non-parent may overcome the presumption under Subsection B by providing underscore, bold, italics, clear and convincing evidence that denial of the relief requested by the non-parent would significantly impair the child’s physical health or emotional development.

If the court renders an order in a suit granting relief to the non parent, the court must include in that order, number one, the specific facts that support the court’s finding that denying the relief requested by the non parent would significantly impair the child’s physical health or emotional development, and number two, the extent to which the non parent overcame the presumption under Subsection B.

So that must be clear and convincing evidence, because that is our new standard. It’s, you know, the finding with the specific facts that seems like a really big thing to include in an order. We might normally see those sorts of facts and findings of acting inclusions of law, but we don’t normally see this level of detail and findings in a court order in Texas. So be really sure that your judge is doing this in any parent versus non-parent order going forward.

So once again, this provision applies to cases pending on September 1, 2025, not just cases filed on or after September 1, 2025. So if you have a parent versus non-parent case out there, clear and convincing evidence standard now is going to apply to that case. This is a very high burden to overcome. Much, much more difficult than the preponderance of the evidence standard. It’s going to be a tough road for non-parents to get any access here.

So then we have 156.008, which includes, so remember chapter 153, deals with original suits. 156 deals with modifications. So 156.008 adds this fit parent presumption in for modifications. Specifically, it says in a suit for modification between a parent and a non-parent, the non-parent number one, if required to overcome the presumption under 153.002b, which is the fit parent presumption, must overcome the presumption by clear and convincing evidence.

And number two may not overcome the presumption under 153.002b on the basis of a prior order granting a relief to the non-parent if the parent agreed to the prior order. So what does this mean? If a non-parent enters a litigation for the first time, in a modification, the parent still gives the presumption a la C.J.C. If a prior order between a non-parent and a parent was agreed, the parent still gets the presumption, assuming that the agreed order did not say otherwise.

You know, it’s possible that you had an agreed order before this that said the parties agree that the fit parent presumption has been overcome, in which case, even though it was agreed, I would argue it’s not going to be resurrected based on this new statute. And third, if a prior order between a non-parent and a parent was not agreed, I would say res judicata applies and the presumption is no longer applicable.

This statute doesn’t explicitly say that one way or another, but logically, that is where the conclusion that I draw from the rest of the statute. So what should you do going forward if you reach an agreement in a case between a parent and a non-parent? So if you represent the non-parent, you have to think twice, because, on the one hand, you might have very little chance of actually getting anything in court under these new statutes.

So if you can reach an agreement, you may very well want to do that. However, that agreement is not going to get you past the fit parent presumption in the future. So if that parent gets their stuff together and decides they don’t want the non-parent in their life anymore, then the fit parent presumption is resurrected. The non-parent is not going to be able to go back and dig up all the stuff that came up before this prior agreed order.

If you’re representing a non-parent, can you get it into the agreement that the presumption was overcome? Maybe. It depends on what the other side knows and is willing to agree to and what motivation they have to do that. If you can, that is the only way you’re going to salvage the fit parent presumption in the future as a non-parent.

If you’re representing the parent, yes, there are certain circumstances when it is best, and you have that right as a parent to decide this is best, to have an agreed order where grandma or friend or whomever is going to take primary responsibility for your child for a period of time for you to get things together, or get to a place where you’re able to take care of your child. Don’t agree to include in that agreement that the fit parent presumption was overcome, if you can at all avoid it.

Because then in the future, with res judicata, that non-parent’s not gonna be able to go back and dig up all the stuff you did before that agreed order. We’re going to be looking from that order going forward, are you a fit parent? So that really helps parents who may need a temporary type order. And by temporary, I don’t mean a temporary order, I mean like a final order that is not going to last forever to, you know, get through to a better place and allow a non-parent to be involved for that period of time.

So I think these changes are going to really lead a lot of issues that we’re all going to have to litigate, and we’re all going to have to deal with in the court of appeals. One that comes to mind, so let’s say, hypothetically, you as a non-parent and a parent entered into an agreed order in July of 2025. This law changes September 1, 2025.

The parent who might have been a complete disaster leading up to that agreed order, they’ve been on a straight and narrow for a couple of months. They go file, they get the fit parent presumption because that prior order was agreed. Can the non-parent go back and bring up everything that happened leading to that agreed order? Res judicata would say no.

If I’m representing the non parent, I would absolutely fight to get that stuff in because, you know, the fact that a meth addict has been clean for three months when they were a meth addict for years before that, if I’m a Judge, I certainly want to know that before I flip custody and give this kid back to the parent. So you know that I’m sure there are a lot of other issues that are going to come from these changes.

Specifically, we’re looking at old orders. What do we do? What do they mean, in the context of these new ones? So it will be really interesting to see how it all plays out and how the law evolves over time, and where does this ultimately land? At the end of the day, I would say all of these changes are a huge win for parents.

It is going to be extremely difficult for non-parents to get in the door at all on standing going forward. Or even if there is a pending case right now, non-parents who are in the door right now on standing under actual care, control, and possession, they might not qualify. And you know you may be able they might get kicked out immediately if a lawyer files the right thing to get those non-parents kicked out.

So, before C.J.C., I feel like the pendulum had swung way over to one side and kind of against parents, in favor of non-parents, not really protecting the constitutional rights of fit parents. And then we have C.J.C., and now we have this legislation, and now the pendulum has swung way to the side of protecting parental rights. Clear and convincing evidence to overcome, take away constitutional rights from parents. Where do we land in the end? To be determined.

I guess we’ll have to see. Will it swing all the way back? Will it even out somewhere in the middle? Will it stay swung way to the side of protecting parental rights? I don’t know. Stay tuned. But, if you’re new to the podcast, take a minute, leave us a review, and subscribe so that you can get all the latest updates, and as things change, I will be sure to update 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.