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.
Furthermore, the Supreme Court has consistently held that parents have a fundamental right to raise their own children under the Due Process Clause of the United States Constitution.
THSC’s legislative team is currently working with lawmakers and attorneys who are experienced in constitutional law and Texas family law. THSC will file a bill during the 2019 Texas legislative session to address statutory deficiencies. The bill will amend the Texas Family Code to directly incorporate Supreme Court precedent.
Codifying the Court’s guidance into the Texas Family Code would ensure that all Texas judges are provided with clear and consistent constitutional direction when determining the best interest of the child in family law cases.
The Family Unity Act 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. That brief is available here.
If you support the Family Unity Act, consider donating to the THSC Watchmen as they work around the clock to pass this legislation. You may also sign up for email notifications. Text “TXHOMESCHOOL” now to 67076 to receive legislative alerts we continue Keeping Texas Families Free!