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Custody Disputes Between a Parent and Nonparent in a Modification

Child Custody & Visitation

Custody disputes between parents and nonparents, in modification cases.

This article addresses questions about custody disputes between parents and nonparents. This kind of dispute can arise in cases with an existing custody order. Even if a court found one or both parents to be fit, a nonparent can try to modify the order. 

What are my rights as a Texas parent?

Under Texas law, the best interest of the child is the most important consideration in custody cases, also known as “conservatorship.” The Texas Family Code does not define the term “best interest of the child.” It leaves it to family court judges to decide what it means in each case. 

Texas law presumes that it is in a child’s best interest for both parents to raise them. In other words, a court should grant custody of a child to the child’s parents unless it finds significant reasons not to do so. 

The U.S. Supreme Court affirmed parental rights in a 2000 decision, Troxel v. Granville. The court held that the Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” A fit parent has the right to make decisions for their child. Courts cannot interfere with these rights unless someone provides evidence that they are not a fit parent. 

In 2020, the Texas Supreme Court held in In re C.J.C. that anyone who claims that a parent is not fit has a tough burden of proof. The court did not provide any guidelines for what kinds of evidence could overcome this presumption, though. 

What is a “fit parent?” 

Texas law does not define the term “fit parent.” Courts have discussed issues that could render a parent unfit. They involve the risk of harm to a child's physical health or emotional development. Examples of issues that could affect a parent’s fitness include the following: 

  • A history of family violence by one parent against the other 

  • Neglect or abuse of a child 

  • Drug use or excessive alcohol consumption 

  • Unsafe or unstable living conditions 

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

Texas courts presume that allowing a parent to care for their child is in that child’s best interest. This applies to disputes about: 

  • Where the child will live; 

  • Who can make decisions for the child; and 

  • Who has visitation rights with the child. 

You can prove that you are a fit parent by showing that you can provide adequate care for your child. If you do this, the court should have no reason to question whether you should have custody rights. 

A nonparent, however, can try to present evidence showing that you are harming the child’s physical or emotional well-being. They must overcome the presumption that the child is better off with you. They must have significant evidence to do this. 

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

The Texas Legislature recently amended the law to address this issue. Since September 1, 2021, the death of a conservator is a ground for modifying a custody order. A court does not have to award custody to the other parent, though. The court must consider any restrictions on that parent’s access to the child in the custody order. If the order has restrictions, the court can consider placing the child with a nonparent.  

Who is a nonparent? 

A nonparent is anyone other than a child’s biological or adoptive parents. Examples of nonparents may include: 

  • Grandparents; 

  • Aunts and uncles; 

  • Stepparents; 

  • Other people who are related by blood, but not by marriage, such as great-grandparents, great-aunts and great-uncles, and first cousins; and 

  • Anyone else who has standing to participate in a custody case, as discussed below. 

When can a nonparent participate in custody litigation?

A nonparent must have “standing” to participate in a custody case. “Standing” means that they have a relationship to or connection with the child. 

Section 102.003(a) of the Texas Family Code describes who may have standing in a custody case. Examples of nonparents with standing include the following: 

  • Someone who is not a foster parent but has had “actual care, control, and possession of the child” for six months or longer; 

  • Someone who has lived with the child and the child’s parent or guardian for at least six months, and the parent or guardian has died; 

  • A foster parent who cared for the child for at least a year; or 

  • The child’s grandparent, great-grandparent, sibling, aunt, uncle, niece, or nephew, if one of the following is true: 

    • Both of the child’s parents are deceased; 

    • Both parents or the surviving parent agreed that the nonparent has standing; or 

    • The child’s current circumstances present a serious risk to their physical health or emotional development. 

A court should determine whether a nonparent has standing before it does anything else in the case. Even if the court finds that they have standing, the nonparent still has to overcome the “fit parent” presumption. 

What happens when a nonparent tries to modify or intervenes in an existing court order?

The nonparent has a tough burden of proof in this situation. First, they have to establish that they have standing. After that, they must show that you are not a fit parent. Finally, they must establish that they are fit to care for the child. 

State law makes it difficult for a nonparent to prove that a parent is unfit. This is especially true if a custody order is already in place. A judge has already determined that you are a fit parent. In a modification case, the court can only consider what has happened since the most recent order. The nonparent has to present evidence that you have put your child in physical or emotional danger or failed to provide proper care. 

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