Many people assume that the law favors the mother when it comes to child custody matters, which used to be the case (absent extreme mitigating circumstances). A better understanding of how the law addresses custody issues may help you navigate your own custody concerns with increased clarity.
Tender Years Doctrine
Throughout the 1970s, the prevailing theory in many states, including Texas, was that, when it came to young children, mothers were preferred for the caregiver role. By the 1980s, this had begun to change, and many states rejected the Tender Years Doctrine outright. Texas was one of these states.
When a Parent Dies
In those cases in which the primary custodial parent dies and a relative – or another person who has substantial contact with the child in question (such as someone in a stepparent role) – attempts to gain possession, the Supreme Court of the United States of America has made it very clear that the other parent is presumed fit. In Troxel v. Granville, the Court found all of the following:
Parents are presumed fit, and any ruling that gets in the way of a parent’s rights regarding raising their children is an unconstitutional violation of the parent’s right (under due process) to care, custody, and control of his or her children.
Custody, care, and nurture of the child is a fundamental parental right.
This right of due process is recognized by the Court as a foundational liberty.
In other words, without a compelling reason for ruling otherwise, courts throughout the U.S. uphold parents’ rights over anyone else who attempts to usurp those rights.
An Important Texas Case
In a recent important example in the State of Texas, the Texas Supreme Court cites Troxel v. Granville in In re C.J.C. In this case, the petition of a child’s maternal grandparents and another petition of the child’s recently deceased mother’s boyfriend – which were filed following the mother’s death – were both denied standing for possession of and access to the child in question. Ultimately, both parties failed to present any evidence that the child’s surviving parent was fundamentally unfit. In the State of Texas, courts are required to presume that it is in the best interests of surviving children for their other parent (who is presumed fit unless proven otherwise) to become their sole managing conservator.
Overcoming the Presumption
In order for a non-parent to overcome the presumption of a surviving parent’s fitness, the challenger must demonstrate – with a preponderance of the evidence – that allowing him or her possession and access is in the best interest of the children involved. Further, the non-parent must be able to show that the surviving parent is unfit to the degree that he or she – in the role of sole managing conservator – would substantially impair the physical and emotional development of the children.