A frequent issue arising in appeals and petitions for writ of mandamus is the question of whether a nonparent successfully overcame the fit-parent presumption. Whether it’s an ex-girlfriend, step-parent, grandparent, or aunt, the burden placed on the non-biological parent is a high one and difficult to overcome.
When considering conservatorship issues, the court’s primary consideration must always be the best interest of the child. See Tex. Fam. Code § 153.002. Additionally, when making its best-interest determination, the court must also give “special weight” to the fundamental liberty interest of parents to make decisions concerning the care, custody and control of their children. See Troxel v. Granville, 530 U.S. 57, 66, 70 (2000) (plurality op.). This special weight is a legal presumption that a fit parent acts in the best interest of his or her child. Id. at 68–69. And this fit-parent presumption applies in any proceeding in which a nonparent seeks conservatorship or access over the objection of a parent. See In re C.J.C., 603 S.W.3d 804, 817 (Tex. 2020) (orig. proceeding).
A parent’s fundamental right to make decisions concerning the care, custody, and control of their children is a natural right that exists between parents and their children and is one of Constitutional dimensions and is “far more precious than any property right.” Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)). Thus, for a nonparent to obtain an original order for possession or access, that person must first overcome the high threshold necessary to overcome the presumption that a fit parent acts in the best interest of her child. In re Derzapf, 219 S.W.3d 327, 330 (Tex. 2007) (orig. proceeding); In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam); In re J.M.G., 533 S.W.3d 137, 143 (Tex. App.—El Paso 2018, orig. proceeding); In re K.R.H., No. 04-13-00260-CV, 2014 WL 1242415, at *4 (Tex. App.—San Antonio 2014, no pet.) (mem. op.).
However, if a court has already found in a prior order that appointing a biological parent as a managing conservator would not be in the child’s best interest, that question becomes res judicata, and the fit-parent presumption will not apply to subsequent modification proceedings. In re R.A., No. 09-20-00275-CV, 2022 WL 7180524, at *6–*7 (Tex. App.—Beaumont 2022, no pet.) (mem. op.). For example. in R.A., the mother sought to modify a prior order that had appointed her as possessory conservator and the father as sole managing conservator. Id. at *1. Contrary to the mother’s assertions, the court was not required to apply in the modification suit a fit-parent presumption to her request. Id. at *6.
The question of fitness is a separate and secondary question with respect to the question of standing. See In re Estep, No. 13-23-00006-CV, 2023 WL 2207634, at *8 (Tex. App.—Corpus Christi 2023, no pet. h.) (mem. op.). A party might be able to establish standing but not be able to overcome the fit-parent presumption. Id. at 12.
The test for fitness is whether the parent can adequately care for the child. C.J.C., 603 S.W.3d at 818. The court’s review is necessarily a very fact-intensive question to be reviewed on a case-by-case basis. See e.g., Estep, 2023 WL 2207634. If a child has one fit parent (regardless of the other parent’s capabilities), the court cannot appoint a nonparent as a conservator over the fit parent’s objection. Id. at *12.
Like any presumption, the fit-parent presumption is rebuttable. See e.g., In re N.H., 652 S.W.3d 488, 496 (Tex. App.—Houston [14th Dist.], pet filed). The Court of Appeals for the 14th District has determined that in the absence of Legislative guidance to the contrary, the burden on the nonparent seeking to rebut the presumption is to show that denial of possession would significantly impair the child’s physical health or emotional well-being. Id. at 498. The nonparent in N.H. has petitioned the Texas Supreme Court for review of this holding, and, as of the date of this writing, the Court has neither denied petition or asked for further briefing on the merits of the issue. In re N.H., No. 22-1007 (Tex. pending) (docket available here).
Texas courts have recognized that the “significant impairment” standard in the Texas Family Code Section 156.006(b)(1) is a high one and requires evidence of bad acts that are graver than violation of a divorce decree or alienation of a child from a parent. In re Serio, No. 03-14-00786-CV, 2014 WL 7458735, at *2 (Tex. App.—Austin 2014, orig. proceeding) (mem. op.). The standard requires the movant present evidence of “serious acts or omissions” that suggest, if the child was to remain in present circumstances, the child’s physical health or emotional development would be significantly impaired. Id. at *2.
The fit-parent inquiry must focus on the present circumstances, and evidence that a parent may have been unfit at some point in the past is insufficient to overcome the presumption. T.E. v. TDFPS, No. 03-22-00067-CV, 2022 WL 3092885, at *9–*10 (Tex. App.—Austin 2022, no pet.) (mem. op.). The evidence should focus on the child’s present circum-stances—not past circumstances—and evidence that remaining in those circumstances would significantly impair her physical health or emotional development. See In re S.M.D., 329 S.W.3d 8, 16 (Tex. App.—San Antonio 2010, pet. dism’d); see also In re Clayborn, No. 02-12-00299-CV, 2012 WL 3631243, at *3 (Tex. App.—Fort Worth 2012, orig. proceeding) (mem. op.) (per curiam).
Similarly, mere conjecture about what might happen is not evidence of a risk of significant impairment posed by the child’s present circumstances. See e.g., Clayborn, 2012 WL 3631243, at *3; In re Tindell, No. 03-18-00274-CV, 2018 WL 3405035, at *5 (Tex. App.—Austin 2018, orig. proceeding) (mem. op.) (father’s complaints of mother’s psychological issues and concerns about children’s nourishment insufficient to overcome threshold).
Further, disapproval of a parent’s parenting choices is insufficient to establish that the child’s present environment may significantly impair her physical health or emotional development. See In re Lee, No. 04-19-00449-CV, 2019 WL 3642640, at *4 (Tex. App.—San Antonio 2019, orig. proceeding) (mem. op.) (father’s concerns that mother allegedly made poor decisions for disabled child’s care and failed to follow doctor’s guidance insufficient to support finding child’s present environment might have significantly impaired his physical health or emotional development); In re J.W., No. 02-18-00419-CV, 2019 WL 2223216, at *11–*12 (Tex. App.—Fort Worth 2019, orig. proceeding) (mem. op.) (children’s less-than grade-level performance in school and mother’s belief father did not keep children clean enough insufficient to support significant-impairment finding); In re Charles, No. 03-17-00731-CV, 2017 WL 5985524, at *4 (Tex. App.—Austin 2017, orig. proceeding) (mem. op.) (evidence regarding mother’s interference with father’s visitation and communications with the child; the child’s dirty, ill-fitting, or damaged clothes and shoes; the child’s poor hygiene; and a “bad case of scabies,” which allegedly occurred about eight months be-fore the modification petition was filed, did not rise to level of significant impairment); In re C.G., No. 04-13-00749-CV, 2014 WL 3928612, at *8 (Tex. App.—San Antonio 2014, orig. proceeding) (mem. op.) (poor relationship between parents and violations of divorce decree legally insufficient to support implied finding children’s present environment may endanger their physical health or significantly impair their emotional development).
Allegations that a child’s emotional development will be significantly impaired must be specific; general allegations are insufficient. In re Strickland, 358 S.W.3d 818, 822–23 (Tex. App.—Fort Worth 2012, orig. proceeding); Clayborn, 2012 WL 3631243, at *3.
I, personally, think that when two humans enter into a relationship and make a conscious, intentional decision to create a child to make a family out of their relationship, there should be some level of permanency regarding the relationship between those two humans and the child, regardless of DNA. I believe that this situation is vastly different from that in which a grandparent or similar “outsider” seeks to intervene because he or she disagrees with the parent’s child-rearing decisions. I think it is entirely appropriate to have an immensely high burden in the latter case, but it just does not—to me—appear to be in a child’s best interest to strip away a person who that child has regarded as a parent for the entirety of that child’s life. We will have to wait and see the outcome of In re N.H. in the Texas Supreme Court. Perhaps the Court will find a way to make a distinction within the current legislative limitations. Barring that, the Legislature should be called upon to make this distinction.
