On Wednesday morning, the Texas Supreme Court is set to hear oral arguments in what is arguably the most important parental rights case in Texas history.

The case surrounds a custody battle currently being waged to determine who will have the right to raise 5-year-old Ann, a little girl from Denton County, Texas. The case immediately stands out as odd when you realize the parties that are battling for custody.

Ann’s father, Chris, is battling for custody of his daughter against the fiance of Ann’s now-deceased mother. If that sounds confusing, it’s because it is.

Ann’s parents were separated and agreed to approximately 50/50 custody of Ann in October of 2016. Ann lived approximately half of the time with her mother and half of the time with her father.

In September of 2017, Ann’s mother began living with her boyfriend. Because Ann lived half of the time with her mother, that meant that Ann also lived with her mother’s boyfriend during those times.

In July of 2018, Ann’s mother died in a tragic car accident. She had become engaged to her boyfriend a few months before her death. Very soon after her death, the maternal grandparents of Ann filed suit, seeking joint custody of her. Ann’s grandparents had always been involved in her life, and Ann’s father, Chris, has always fostered a relationship between them and his daughter.

Under Texas law, the maternal grandparents were required to prove that leaving Chris as the sole custodian of Ann would “significantly impair” Ann’s physical or emotional health.

This is because Texas law, as required by U.S. Supreme Court constitutional case law, presumes that any parent is a fit parent. That presumption must be overcome before a third party is allowed to simply take custody of a child from that parent.

The Fort Worth Court of Appeals ruled that, because Chris was an entirely fit parent who raised his daughter well, the grandparents were not allowed to intervene and take custody from him. Seems logical.

Even after this legal battle, Chris continued to allow his in-laws to spend time with Ann.

This is where the story becomes particularly strange.

Shortly after the grandparents filed for custody of Ann, the fiance of Ann’s mother also filed for custody of her. The fiance is not related to Ann in any way and had only spent a cumulative 5-6 months with her up to this point. Even during the time Ann lived in the same house with the man, Ann’s mother was the actual caregiver. The fiance never had any special caregiving relationship with Ann beyond his short time of them living together and him assisting in the normal ways you would expect an adult to assist.

While the story had already turned strange by this point, it suddenly turned horrendous.

After the finding had already been made that Chris was an entirely fit parent who raised his daughter well, the trial court then proceeded to give joint custody of Chris’ daughter to this unrelated man. 

Chris’ in-laws were denied custody on the grounds that they were unable to prove Chris was an unfit parent, a constitutionally required finding. However, this completely unrelated man who had a relatively minimal role in Ann’s life was granted custody.

The court reasoned that the boyfriend-turned-fiance was not required to prove Chris was an unfit parent before obtaining custody of Ann. As the court explained it, the law which the grandparents had sought custody through specifically required that Chris be found unfit before custody could be granted to the grandparents. The law which the fiance was using did not specifically require this finding. Therefore, the court argued, the boyfriend was able to seek custody on equal footing with the actual father.

Chris appealed the decision to the Fort Worth Court of Appeals. Chris argued that whether Texas law specifically required that the fiance prove Chris to be unfit was irrelevant because the United Stated Constitution does require it. One hundred years of case law from the United States Supreme Court has found that the right of a parent to raise their children is the “oldest of the fundamental liberty interests recognized by this Court.”

The Fort Worth Court of Appeals denied Chris’ request. He then appealed to the Texas Supreme Court. The high court is scheduled to hear oral arguments in the case on Wednesday morning. The arguments will be hosted online and streamed live over the court’s YouTube account.

What makes the case so significant is not just that an unrelated man was given custody of another man’s daughter, but that he was given custody on the grounds that the father had no greater right to custody than did a completely unrelated individual who happened to have cohabitated with her.

If the court agrees with the fiance’s argument, parents could see a litany of lawsuits from nonrelatives seeking custody of children. Live-in boyfriends, nannies, roommates, college students renting out a room in the house … any of them could sue for custody of a child and actually win because parents would not be presumed to have any greater right to custody of their own children.

A litany of pro-family entities, including the attorney general of the State of Texas, have filed briefs defending Chris’ right to raise his daughter. To date, the only entity that has intervened to defend the fiance’s position is the Family Law Section of the Texas Bar. Needless to say, many family law attorneys who are forced to pay dues to the Texas Bar were none too happy about this decision.

The Texas Home School Coalition, Texas’ leading advocate for family rights, has launched an online video and a website called LetHerStay.com to raise awareness of the case and help raise necessary funds.

The website asks the public to sign a petition to Gov. Abbott about the case, contact their legislators, and give a tax-deductible donation.

Concerned citizens should tune in to the Texas Supreme Court’s livestream of oral arguments at 9:00 a.m. on Wednesday to view the proceedings for themselves.

This commentary was submitted and published with the author’s permission. If you wish to submit a commentary to Texas Scorecard, please submit your article to submission@texasscorecard.com.

Jeremy Newman

Jeremy Newman is the Director of Public Policy for the Texas Home School Coalition.