A box of cereal has been collecting dust in my small apartment pantry for seven months. I have no attachment to this box; I simply neglected to throw it out once it went stale, and it’s now a fixture of my residence.

Under Texas Family Code 102.003 (a)(9), if this cereal box was a sentient being and if it spent the seven months it resided in my house helping with the care, control, or possession of my child, it would legally have standing to file lawsuit seeking custody of my children. If a recent District Court decision is allowed to stand, it could even win.

True guardianship is important. But there’s a loophole in Texas law that grants non-relatives — and indeed, even total strangers to a child — greater rights than the law provides to grandparents and other blood-relatives. This is not only paradoxical, it’s unconstitutional. And it’s why the Texas Public Policy Foundation recently filed an amicus brief in the Texas Supreme Court seeking to vindicate a father’s right to his relationship with his daughter.

C.J.C. is a fit father. But he has spent two years fighting the Texas court system for full and rightful custody of his biological daughter. He’s one of many parents living the nightmare caused by a statute which casts a wide net of eligibility for nonparents to gain custody. C.J.C. shared almost 50/50 joint custody with his daughter’s biological mother until she passed away in 2018 from a car accident.

Fittingly, the daughter went to live with her father immediately following her mother’s death, but the grandparents—who still enjoyed time with their granddaughter — were not satisfied and filed for joint custody of the girl despite the father’s wishes for sole guardianship.

After the court denied the grandparent’s request, the mother’s fiancé, J.D., a virtual stranger to the child, took legal action to be named joint managing conservator with C.J.C., on the grounds that he had lived with mother for approximately eleven months before her death and was present during the 50-percent of the time the child resided with her mother under the custody order.

The District Court not only gave standing to J.D., but awarded generous access and possession to the fiancé, making it clear that the child’s grandparents could use this order to spend unlimited time with the granddaughter when J.D. had possession.

Granting rights to the fiancé of the deceased mother — rights akin to those of a parent — violated C.J.C’s constitutional rights, and represents a misapplication of Texas statutes aimed at protecting the fundamental right of parents to direct the care, custody, and control of their child free from outside supervision.

The United States and Texas Constitutions widely protect the fundamental rights of parents. According to U.S. Supreme Court precedent, C.J.C. is presumed a fit parent who naturally acts in the best interests of his child, and the government is prohibited from interfering with his decisions unless able to demonstrate a narrow and compelling interest in intervening.

His decisions concerning his daughter should be given broad deference. And he should have been protected from the court substituting its own judgment for his own.

These rights, theoretically, are protected by the highest level of judicial scrutiny. Yet, C.J.C. was denied his fundamental right to a full relationship with his daughter by a District Court judge’s creative end-run around the law.

C.J.C was acting within his constitutional rights when he decided to resist the attempts of his daughter’s grandparents and J.D. to obtain legal rights to the child.

This issue is significant for C.J.C. and his daughter, but it is also significant for all Texas parents. If the Texas Supreme Court allows this decision to stand, parents across this state will be at risk of having to share custody of their children with untold numbers of non-relatives and, indeed, virtual strangers based solely on the subjective decision of a court with the unchecked power to meddle in the private lives of families.

 

Andrew Brown is the director of the Center for Families and Children at the Texas Public Policy Foundation. Follow Andrew on Twitter 

@MrACBrown.

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