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Custody Disputes Between a Parent and Nonparent in a Modification

Family, Divorce & Children

This article answers questions about custody disputes between a parent and a nonparent in a modification case where there is an existing custody order under which one or both parents were found to be fit and appoint managing conservators.


What are my parental rights under the United States Constitution?

The United States Supreme Court held in the case of Troxel v. Granville that the United States Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

This means that as a fit parent, your interests and rights to make decisions for your child are protected and a court may not interfere with those rights because of the presumption that fit parents act in the best interest of their child.


What are my rights as a Texas parent?

Texas also recognizes a legal presumption that it is in a child’s best interest to be raised by his or her parents. So Texas courts presume that the best interest of the child is served by awarding custody to a fit parent.

The Texas Supreme Court addressed this issue with In re C.J.C., a modification case. In this case, the child’s mother filed a modification lawsuit but died while the case was pending. The maternal grandparents and the mother’s fiancé (all nonparents) petitioned to intervene and asked for conservatorship rights and duties and also court-ordered visitation. 


What is a “fit parent?”

Neither the Texas Supreme Court nor the Texas Family Code defines “fit parent.” Some Texas cases discuss factors that would significantly impair a child’s physical health or emotional development, which may provide more of a definition for an unfit parent.


Who is considered a nonparent?

A nonparent is any person not the natural or biological parent of a child. This term may include, but is not limited to: 

  • grandparents, 

  • aunts, 

  • uncles, 

  • stepparents, 

  • the child’s great-grandparents, great aunts and uncles, and first cousins, who are related by blood (does not include relatives by marriage)

  • any person who has standing because the child has resided with that person for at least 6 months prior to the filing of any lawsuit.

When can a nonparent participate in custody litigation?

A nonparent must have standing to participate in custody litigation concerning your child. This means the nonparent in the modification must meet certain definitions to continue participating in the lawsuit. The trial court should make its determination on the issue of standing first before the merits of the custody dispute are determined.

The Texas Family Code’s statutes on standing can be found at Texas Family Code 102.003(a).

Even if the nonparent has standing, the nonparent still has to overcome the legal “fit parent” presumption before the court.


How does the legal “fit parent” presumption apply in a modification custody dispute?

Texas courts, in making a determination of a child’s best interest, must consider that the child’s best interest is served by allowing a child’s parent or parents to care for their child. This applies to disputes about where the child will reside; who will make decisions for the child; and who has visitation rights to the child.

If the court finds you are a “fit” parent—meaning you have proven able to adequately care for your child—then the court should not have a reason to question your ability as a parent to make decisions for your child.

But, the court may also find a parent is an “unfit” parent if the nonparent provides sufficient evidence to the court that the parent or parents are significantly impairing the child’s physical development or emotional well-being.


A nonparent is trying to modify or has intervened in my existing court order-what happens now?

If you have an existing court order in which you are named a managing conservator, then the court has already made an initial determination and found you are a fit parent. In a modification, the court can only hear evidence on what has happened since the date of your last court order. If in that time frame, you have not put your child in any physical or emotional danger and you have properly cared for your child, the court should not remove you as a managing conservator. 

Remember the nonparent must first have standing to intervene in any pending modification suit. 

“Standing” means the legal right to file a court case. Usually, only a parent has standing to file an initial custody case.

If you are not the parent, you have standing to file an initial custody case only if:

  • you have had actual care, control and possession of the child for at least 6 months ending not more than 90 days before the date you file your case and you are not a foster parent; or

  • you have lived with the child and the child’s parent, guardian or conservator for at least 6 months ending not more than 90 days before the date you file the SAPCR, and the child’s parent, guardian or conservator has died; or

  • you are the foster parent of a child placed by the Department of Family & Protective Services who has been in your home for at least a year ending not more than 90 days before the date you file the SAPCR; or

  • you are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece or nephew and: 

    • both parents are dead, or

    • both parents, the surviving parent or managing conservator agree that you can file the case, or 

    • the child’s present circumstances will significantly harm the child’s physical health or emotional development.

Second, even if the nonparent does have standing, the nonparent has the burden to overcome the legal presumption that you, as a managing conservator of your child, are no longer a fit parent. The Texas Supreme Court case In re C.J.C. indicates that the nonparent’s burden to overcome this presumption is very high, but there is no guideline as to what evidence is necessary to overcome this presumption.  


What happens if a fit parent passes away, and the other parent is unfit?

Starting September 1, 2021, the death of a conservator is grounds for modification. But, awarding primary conservatorship to the surviving parent is not automatic if there were previously restrictions on the surviving parent's access to the child, and the reasons behind those restrictions still exist. See Texas Family Code 156.106.

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