The state of Texas is asking its judges to solve the family law equivalent of a quadratic equation without the formula. Of course, it is incredibly difficult.

In every family law case that affects the parent-child relationship, the primary consideration of the court is the “best interest of the child.” Yet, the Texas Family Code gives no specific direction for making this determination. That is problematic for the following reasons:

  • Judges across Texas have very different opinions as to what constitutes the “best interest of the child.”
  • Family law cases make up 50 percent of the Texas judicial caseload. The state is asking its judges to spend a significant portion of their time parenting other people’s children. Each judge is left to solve this problem with virtually no direction or resources.
  • The United States Supreme Court and the Texas Supreme Court have provided nearly 100 years of guidance as to how judges should constitutionally determine the “best interest of the child.” However, these rules are not reflected in the Texas Family Code.
  • The Texas Family Code is the source most commonly cited by family law judges, but many are unaware of the Supreme Court’s clear direction on deciding the “best interest of the child.” Judges cannot find the instructions that they need in the Texas Family Code.
Over the past 100 years, the U.S. Supreme Court and the Texas Supreme Court have repeatedly held that courts must presume a parent to be fit and that a fit parent acts in the best interests of the child. The court is not allowed to overrule parental decisions merely because the judge disagrees with the parent and believes that a better decision could have been made. The court is required to defer to the parent unless it is proven that the parent is unfit or that the parent’s specific decision was physically or emotionally detrimental to the child.

Furthermore, the U.S. Supreme Court has consistently held that parents have a fundamental right to raise their own children under the due process clause of the U.S. Constitution.

This extensive precedent from the U.S. Supreme Court was also recently outlined by Attorney General Ken Paxton in AG Opinion KP-0241.

THSC’s legislative team has worked with lawmakers and attorneys who are experienced in Constitutional law and Texas family law to file the Family Unity Act: House Bill 2756 and Senate Bill 2365.

The Family Unity Act will update the Texas Family Code to directly incorporate Supreme Court precedent outlined by AG Opinion KP-0241.

Codifying the Supreme Court’s guidance into the Texas Family Code would ensure that all Texas judges are provided with clear and consistent Constitutional direction when determining how far they can intervene into the parent-child relationship.

The Family Unity Act is the product of many expert lawyers, attorneys and analysts who worked tirelessly to ensure that it accurately reflects Supreme Court precedent.

The bill will answer a legal question using only existing case law. It does not address the policy debate as to which outcome is correct in any specific case. By subsection, the bill would make the following changes:

  • Subsection (a) specifies that the state of Texas may not intervene in family matters unless it overcomes the presumptions that parents are fit and that fit parents act in the best interest of their child.
  • Subsection (b) makes no changes.
  • Subsection (c) defines the scope of a parent’s fundamental right to raise their own child as including, but not limited to, the right to direct the care, custody, control, nurture, education, upbringing, moral and religious training, and health care of their child.
  • Subsection (d) defines a “fit parent” in accordance with the Supreme Court’s definition.
  • Subsection (e) clarifies that these changes only affect suits between a parent and a non-parent.
    • Subdivision (1) establishes the standard of strict scrutiny, which requires the state to provide a compelling reason for its intervention and to demonstrate that it is using the least restrictive means available.
    • Subdivision (2) provides that mere disagreement is not sufficient for a court to overrule the parent’s right to determine the child’s best interest. When the court intervenes, it must find either that the parent is unfit or that intervention is necessary to prevent serious harm to the child’s emotional or physical well-being.

Before introducing this legislation, THSC submitted a brief to the Texas attorney general’s office to obtain his opinion on the matter.

The Attorney General has released an opinion in response to the request.