Courts or Parents: Who decides what is best for a child?

One of the most gruesome fights for parental rights in today’s courts is right in the middle of the family unit: the fight for custody or possession of a child. With homeschooling increasing in popularity and THSC’s focus broadening to include fighting for parental rights, THSC has noticed an increase in child custody and possession issues as they relate to homeschooling.

In fact, THSC receives calls weekly regarding custody from Texas homeschooling families!

The most predominant test used in family court for issues related to a child is the “best interests of the child” standard. Essentially, most courts will tailor their orders to fit what they consider to be in the child’s best interest.

Where this gets confusing is when a fit parent (defined as one who adequately cares for their child) disagrees with the court on what is in the child’s best interest.

Whose opinion wins? The court or the parent?

Well, according to United States Supreme Court precedent in the Troxel v. Granville case, the court should not overrule a fit parent’s decision because it disagrees with what is in the child’s “best interests.” The Troxel decision stated:

… so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.

Unfortunately, the practical application of this rule is far less clear.

An Abuse of Process

Presently, the primary recurring problem is the issue of temporary orders—court orders that have no statutory expiration date and cannot be appealed through the regular process.

Texas judges who issue a temporary order in violation of the law (especially case law) meet little opposition. After all, the family can’t file a normal appeal to contest the judge’s decision, and the order can stay in effect for as long as the judge wants it to. The few legal recourses that are available to the family are often too expensive and few attorneys can navigate the legal system well enough to utilize them.

Courts Overruling Parental Authority

A judge who issues a temporary order for the unjust removal of a child in a custody or possession dispute can easily shield himself/herself from the legal consequences by stating that the decision was made in “the child’s best interests.” What seems to be easily overlooked is that, unless proven unfit, staying with the child’s parent is in the child’s best interests.

As mentioned above, the US Supreme Court decision in Troxel prevents the judge from overruling the fit parent’s decision just because he/she disagrees on what is in the child’s best interests.

However, by employing the procedural rules listed above, a judge can effectively ignore the clear case law and overrule the decision of a fit parent (potentially removing the child completely). Then the family suffers as the “temporary” order used stays in effect for an undefined period of time and the family cannot appeal it.

THSC has been involved in numerous cases where children were removed entirely for several years without cause. A common problem that THSC hears about from our members concerns judges who decide that home schooling is not in the best interests of children. All too often the judge orders the child to public school as if that is the “default” best solution for any child.

It seems as though many Texas judges have forgotten about the Troxel decision altogether.

What Is THSC Doing to Defend Parental Rights?

  • Legal Assistance for Families – Because custody issues involving home schooling have become more prevalent, THSC enlisted Texas attorney and home school mom Maureen Ball as THSC’s Special Counsel on Custody Issues. THSC now offers free custody consultations for members on issues related to home schooling.
  • Taking the Fight to the Legislature – Because these issues of parental rights deal with such fundamental elements of family law, THSC is working to draft legislation for the 2017 legislative session to help address these issues.

What Can You Do to Help?

  1. Pray that these legislative reforms will pass during the 2017 legislative session.
  2. Let us know if you have stories or experiences that you think would help THSC in talking to legislators about this problem.
  3. Join THSC today to help support our efforts.
  4. Sign up to receive notifications of progress made on these and other important pieces of legislation as THSC continues Keeping Texas Families Free.