The Texas Family Law bar has been eagerly awaiting a ruling from the Texas Supreme Court on the case In Re C.J.C. This case addressed whether a fit parent has the fundamental right to make decisions as to the child’s access to other parties (such as relatives or stepparents after the death of a parent).

The Texas Family Code has always tracked the ruling of Troxel v. Granville, where the Supreme Court held that the United States Constitution protects a parent’s fundamental right to make decisions concerning the care, custody, and control of their children. This ruling was in response to a trial court requiring that a fit parent allow access to the child’s grandparents. The Texas family courts presume that a fit parent is acting in the best interest of a child by allowing (or not allowing) third parties to have access to a child.

This line of thinking was the issue in In Re C.J.C. The child’s biological parents had an existing Order in Suit Affecting Parent-Child Relationship (the parties were never married). The mother passed away in a car accident and the father moved the child in with him and assumed all periods of possession. The mother’s partner, who had resided with the mother and therefore shared in her periods of possession of the child, intervened in the modification suit (which had been filed prior to the mother’s death), asking for conservator-ship and periods of possession of the child. The trial court found the boyfriend had standing and granted certain rights and duties as well as periods of possession. There was no evidence that the father was unfit; the parties had a modified possession schedule where the split was about 54% to the mother and 46% to the father and there were no allegations that the father was anything but a good father.

In a unanimous decision, the Texas Supreme Court held that the fit-parent presumption is “deeply embedded in Texas law” as part of deciding a child’s best interest. The Texas Supreme Court claimed that the trial court “essentially substituted its determination… [in the child’s best interest] …for her father’s” when granting an unrelated third-party rights and possession. When a nonparent is asking for conservatorship or access to a child, the Court determined that the child’s best interest is irrevocably entwined with the presumption that it is a fit parent and NOT the court, who makes the decision as to whether that access should be allowed.

This decision stemmed from a modification suit. There are other instances, CPS cases or cases where neither parent was named as a possessory conservator, that this ruling would not apply. But for modification suits where a parent was originally named as a conservator, that parent retains the fundamental right to make a determination as to whether a nonparent can have access or visitation. That will be done informally and outside the scope of a Court order.