Fit-Parent Presumption and Third-Party Standing

Best interest and Troxel

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.).

Calculating the relevant time period

Timing of filing matters. See In re P.R., No. 02-25-00543-CV, 2025 WL 3559018 (Tex. App.—Fort Worth 2025, orig. proceeding [pet. filed]) (mem. op.).[1] In P.R., the stepmother did not initially include a SAPCR in her petition for divorce, stating that there were no children of the marriage. Id. at 1. While the divorce was ongoing, the father initially restricted stepmother’s access to his child but later allowed the stepmother to see the child periodically. Id. at 1–*2. By the time the stepmother amended her divorce petition to additionally seek orders for the child, the stepmother had not shared a residence with the child for the requisite period. Id. at 3. The stepmother argued that her amendment of adding a SAPCR to the divorce should have related back to the date she initiated the divorce. Id. However, although the two proceedings are considered jointly by the court, a SAPCR and a divorce are two distinct proceedings with distinct statutory frameworks for standing. Id. at 4.

New statutory amendments

In 2025, the Texas Legislature changed the word “actual” to “exclusive” Section 102.003(a)(9). This change supersedes the Texas Supreme Court’s analysis of the word “actual” in In re H.S., 550 S.W.3d 151 (Tex. 2018). The crux of that case defined “actual care, control, and possession,” giving us three elements a nonparent was required to satisfy to show standing. The split of authority that led to the Supreme Court taking that case was multiple COAs opining that “actual” meant real-world plain-English “actual” (which is the conclusion in H.S.), and two COAs finding that “actual” meant “abdication,” in that a parent had to somehow abdicate his or her own care, control, and possession to the nonparent for that nonparent to have standing.

For the analysis of the “abdicate” viewpoint, see In re H.S., 552 S.W.3d 282, 289 (Tex. App.—Fort Worth 2016) (reversed by 550 S.W.3d 151 (Tex. 2018)) (quoting In re K.K.C., 292 S.W.3d 788, 792 (Tex. App.—Beaumont 2009, no pet.)).

From the Fort Worth H.S. opinion that was reversed by the Texas Supreme Court:

[S]tanding under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child's parent [1] is unfit or [2] has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period.

552 S.W.3d at 289 (emphasis added). While this holding was overturned by the Supreme Court, the new legislative changes imply this is a more accurate analysis of current Texas law.

Other amendments were made to other statutes relating to this change, such as the addition of Section 102.0031 entitled “Required Affidavit for Standing of Nonparent” and changes to the grandparent standing statute (Section 102.004).

The new affidavit requirement applies to all non-parent standing suits, including ones pending before the statutory change. In re S.N., S.W.3d , No. 02-25-00525-CV, 2025 WL 3713587 (Tex. App.—Fort Worth 2025, orig. proceeding). In S.N., two women had independently adopted children and had given the other conservatorship rights. Id. at 1. However, one child was not adopted by the mother until after the couple separated. Id. Well before the legislative changes, the ex-girlfriend filed a suit seeking conservatorship. Id. Although they initially agreed to a possession schedule, the mother ultimately terminated her ex-girlfriend’s access to that child. Id. The ex-girlfriend amended her petition after the statutory change to include the required non-parent affidavit in support of standing. Id. at 2. After the trial court denied the mother’s motion to dismiss, the mother sought mandamus relief. Id. The appellate court applied caselaw previously used to determine whether a nonparent overcame the fit-parent presumption in grandparent-access suits. Id. at 4. The court noted that “[a] party may lose standing while a case is pending.” Id. at 5 (citing Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001); Empower Texans, Inc. v. Tex. Ethics Comm’n, No. 03-16-00872-CV, 2018 WL 3678005, at 4 (Tex. App.—Austin 2018, no pet.) (mem. op.)). Because the affidavit was insufficient, the trial court abused its discretion in denying the mother’s motion to dismiss. 2025 WL 3713587, at 7.

Rebutting the presumption

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., In re Estep, No. 13-23-00006-CV, 2023 WL 2207634 (Tex. App.—Corpus Christi–Edinburg 2023, orig. proceeding) (mem. op.). 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.] 2022, pet denied). Before the legislative changes, the Court of Appeals for the 14th District 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. Perhaps spurred by this case, the new additions to the Family Code include significant impairment language not present during the N.H. appeal. See e.g., Tex. Fam. Code § 102.0031.

The language in the new Section 102.0031 is nearly identical to the significant impairment language in the older Sections 153.432(c) and 156.006(b)(1). See S.N., 2025 WL 3713587, at *4.

Section 102.0031:

(a)      A nonparent who files or intervenes in a suit affecting the parent-child relationship in which another party to the suit is a parent of the child shall execute and serve with the nonparent's initial pleading an affidavit that:

(1)     attests, based on the nonparent's personal knowledge or representations made to the nonparent by a person with personal knowledge of the matter, that denying the relief sought would significantly impair the child's physical health or emotional development; and

(2)     contains facts that support the allegation under Subdivision (1).

(b)     The court shall deny the relief sought and dismiss the suit or strike the intervention, as applicable, unless the court determines, based on the affidavit, that the affidavit contains facts adequate to support the allegation under Subsection (a)(1).

Section 153.432(c):

In a suit described by Subsection (a), the person filing the suit must execute and attach an affidavit on knowledge or belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would significantly impair the child's physical health or emotional well-being. The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under Section 153.433.

Section 156.006:

(b)(1)      the court may not render a temporary order that has the effect of … under the final order unless the temporary order is in the best interest of the child and [] the order is necessary because the child’s present circumstances would significantly impair the child's physical health or emotional development … [or] …

(b-1)       … The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines, on the basis of the affidavit, that facts adequate to support the allegation are stated in the affidavit. If the court determines that the facts stated are adequate to support the allegation, the court shall set a time and place for the hearing.

Note that all these statutes include language to instruct the trial court to deny relief simply on the language of the affidavits—no hearing necessary. Tex. Fam. Code §§ 102.0031(b), 153.432(c), 156.006(b-1). However, with respect to 156.006 at least, appellate courts have consistently held that it is harmless error for a trial court to hold a hearing on a proposed modification when the required affidavit is deficient or absent, provided that adequate evidentiary support is admitted at the hearing. In re Haddad, No. 04-25-00484, 2026 WL 517517 (Tex. App.—San Antonio Feb. 25, 2026, orig. proceeding) (mem. op.).

The language of these statutes presumes that parents act in their children’s best interest. In re J.P.C., 261 S.W.3d 334, 337 (Tex. App.—Fort Worth 2008, no pet.) (citing In re Derzapf, 219 S.W.3d 330, 333 (Tex. 2007) (orig. proceeding)). Many of the opinions finding insufficient evidence to overcome the statutory requirement italicize the words “significant impairment,” presumably because the intervening grandparents (and other nonparent parties) offer evidence that could support a best-interest finding but do not rise the significant level necessary to override a fit parent’s decision making. “This high threshold exists so that a court will refrain from interfering with child-rearing decisions made by a parent simply because the court believes that a ‘better decision’ could have been made.” In re A.NG., No. 02-09-00006-CV, 2010 WL 213975, at *2 (Tex. App.—Fort Worth 2010, no pet.) (mem. op.) (citing In re J.P.C., 261 S.W.3d 334, 337 (Tex. App.—Fort Worth 2008, no pet.)).

Grandchildren’s “lingering sadness” from lack of contact with their grandparents did not sufficiently demonstrate significant harm to the children because the court-appointed psychologist testified that the sadness did not “manifest[ ] as depression or behavioral problems or acting out” so as to “rise to a level of significant emotional impairment.” In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (citing Derzapf, 219 S.W.3d at 332–33). Similarly, a trial court erred because it “did not indicate any reason why” it should interfere with the parent-child relationship, and the mother “articulated several reasons for not wanting to turn her son over to her mother-in-law[,]” including “differences about church attendance, what to say about [the father's] death, and alleged inattention by her mother-in-law.” Id. (citing In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (orig. proceeding)). In Scheller, the following evidence was insufficient to overcome the significant-impairment hurdle: (1) the children were displaying anger; (2) one of the children experienced instances of isolated bed wetting and nightmares; (3) witnesses who have seen the grandfather with the children testifying that, from their experiences, denying the grandfather access to his grandchildren would impair the children’s physical or emotional development; and (4) the significant impact of loss of maternal family members on the children, leaving the grandfather as the only remaining maternal familial connection.

As noted above and repeated in multiple opinions, “[a] court may not lightly interfere with child-rearing decisions made by [a fit parent] simply because a ‘better decision’ may have been made.” Derzapf, 219 S.W.3d at 334 (citing Troxel, 530 U.S. at 73). “Although the trial court might have believed it to be a ‘better decision’ to allow [the grandparents] more regular contact with [the child], such good intentions do not alone justify interfering with [a parent’s] child-rearing decisions under the governing legal standards as the Texas Supreme Court has applied them.” In re Turan, No. 13-19-00124-CV, 2019 WL 4871484, at *6 (Tex. App.—Corpus Christi–Edinburg 2019, orig. proceeding) (mem. op.).

Again, when a non-parent seeks to overcome the fit-parent presumption, they must overcome the presumption with respect to both living parents. See In re J.T.L., No. 03-25-01007-CV, 2026 WL 375670 (Tex. App.—Austin Feb. 11, 2026, orig. proceeding) (mem. op.); see also Estep, 2023 WL 2207634, at 12. In J.T.L., a protective order was entered against the father for the protection of the mother, and the mother was appointed as the child’s sole managing conservator. 2026 WL 375670 at 1. The paternal grandmother supervised the father’s periods of possession. Id. During a subsequent modification suit (before the expiration of the protective order), the grandmother intervened to gain an order for grandparent access. Id. The grandparents’ affidavits focused primarily on their close relationship with the child, which was insufficient to support a significant impairment finding. Id. at 4. Moreover, while the grandparents raised allegations about the father’s parenting skills, no one disputed that mother was a fit parent. Id. at 2.

To overcome the fit-parent presumption, the circumstances for the child must be significant. See e.g., In re K.R.S., No. 11-24-00048-CV, 2025 WL 92878 (Tex. App.—Eastland 2025, pet. denied) (mem. op.). For example, in K.R.S., TDFPS was initially involved due to the mother’s drug use. Id. at *1. The child was placed with his paternal grandmother. Id. The father did not appear at final trial. Id. In affirming the final appointment of the grandmother as the child’s sole managing conservator, the appellate court noted the following evidence supporting a finding the fit-parent presumption was rebutted:

·         the child was exposed to domestic violence;

·         the mother lacked the ability to protect the children from father;

·         the child was diagnosed with chronic PTSD from witnessing violence;

·         the child was further traumatized by being left alone by the mother and not being able to find his family;

·         the mother recalled providing food for the child’s sibling but not for the child; and

·         a counselor testified about concerns of further trauma if the child were returned to the mother.

In sum, while grandparents (and other nonparent parties) may have a lot to offer a child, it is extremely difficult for nonparents to obtain any court orders to require parents to involve the nonparents against the nonparent’s wishes, particularly after the most recent legislative changes.

[1] Docket page for pending Supreme Court opinion accessible here. The Court has not yet requested briefing from the respondent and may deny review without requesting or receiving briefing from the respondent.