Texas Divorce Attorney Blog
Texas courts have long recognized that parents have a fundamental right to make decisions concerning the care, custody, and upbringing of their children. Article I, Section 37 of the Texas Constitution formally places those parental rights into the Texas Constitution by affirming that parents have the responsibility to nurture and protect their children and the corresponding fundamental right to exercise care, custody, and control over decisions concerning their children’s upbringing. Tex. Const. art. I, § 37.
Although the amendment does not eliminate a family court’s authority to determine conservatorship, possession, or access issues, it provides additional constitutional protection when courts are asked to restrict a fit parent’s ability to make decisions for a child.
Texas’s Existing Protection of Parental Rights
Before Article I, Section 37 was added, Texas courts had already recognized that parental rights are fundamental rights protected under constitutional law. In the case In re C.J.C., the Texas Supreme Court addressed a mandamus proceeding in which an unmarried father challenged temporary orders entered in a suit to modify custody after the child’s mother died. In re C.J.C., 603 S.W.3d 804 (Tex. 2020).
The trial court had granted the mother’s boyfriend, not the child’s grandparents, who were found to lack standing, possessory conservatorship and court-ordered periods of possession over the father’s objection, despite no finding that the father was unfit. The father argued that awarding a nonparent court-ordered access without any finding of unfitness improperly interfered with his constitutional right to make decisions regarding his child.
The Texas Supreme Court agreed that a fit parent’s decisions are entitled to a presumption of validity. The Court explained that courts must apply a heightened standard when a third party seeks to override a parent’s decision because parents have a fundamental interest in directing the care and upbringing of their children.
That principle was already reflected in Texas family law. Under the Texas Family Code, courts must consider the best interest of the child when making conservatorship determinations, but those decisions occur within the constitutional framework protecting parental authority. Tex. Fam. Code § 153.002.
Implications for Texas Divorce and Custody Cases
Article I, Section 37 could become an important consideration in Texas custody disputes involving not only parents, but also grandparents, relatives, and other third parties seeking court-ordered involvement in a child’s life. The amendment reinforces that a parent’s decisions concerning a child’s upbringing are constitutionally protected. Still, it does not eliminate the ability of qualified third parties to seek relief under the Texas Family Code when circumstances justify court intervention.
For example, a grandparent seeking possession, access, or conservatorship after a divorce may face additional constitutional considerations because Texas courts must evaluate the request in light of the parent’s fundamental right to make decisions regarding the child. At the same time, a third party who has played a significant role in a child’s life may still have legal avenues to seek involvement if the statutory requirements for standing and relief are satisfied. Tex. Fam. Code §§ 102.003 – 102.004.
The amendment therefore affects both sides of a family law dispute. Parents may rely on Article I, Section 37 when challenging attempts by third parties to obtain authority over their children. At the same time, grandparents, stepparents, and other relatives must understand how the constitutional protection of parental rights affects their ability to pursue custody or visitation.
Courts will continue to examine the specific facts of each case, including the relationship between the third party and the child, the circumstances leading to the request, and whether judicial intervention is authorized under Texas law.
Contact McClure Law Group for Assistance in Your Texas Custody Matter
McClure Law Group represents clients involved in complex Texas family law matters, including disputes involving parental rights, conservatorship, possession, and third-party claims involving children. Connect with our child custody attorneys today by calling (214) 692-8200.