Standing Up for Nontraditional Families: How Third-Party Standing Prevents Courts from Examining the Best Interest of the Child Standard in Texas

Abstract

Texas should redefine “parent” to include de facto parents. Texas currently defines parent as an individual that has either legally adopted the child or is biologically related to the child. While this definition works well for families that are comprised of two heterosexual individuals and only their biological children, this definition of parent does not protect the nontraditional families that are increasingly becoming more common. As social norms change, more children are raised by individuals that are neither their biological nor adoptive parents. What this means for those children is that an individual, or third-party parent, that has played a significant role in their upbringing has limited rights to remain in that child’s life. For the child, this means that without a change, the child will inevitably face lasting negative psychological effects that result from separation from an individual that has been the child’s primary caretaker. For an individual to establish rights to a child, that has neither adopted nor is biologically related, that individual must first have standing to bring the suit. The Supreme Court holding in Troxel v. Granville shaped third-party standing jurisprudence when it recognized that biological parents have a constitutionally-protected interest in the upbringing of their children. This means that an individual that does not meet the Texas definition of parent will face stringent standing requirements because the court views the individual as an outsider. In Texas, for a third-party parent to bring a suit affecting the parent-child relationship, the third-party to have actual care, control, and possession of the child for at least six months and then they must bring the suit within ninety days of no longer meeting that threshold. Even if the third-party can overcome the actual care, control, and possession requirement, the third-party parent then faces the parental presumption — meaning that they must show that harm would result to the child if the third-party parent was not awarded custody. This parental presumption overshadows the best interest of the child standard that is supposed to be the primary consideration in all custody hearings. Unfortunately, standing and the parental presumption prevents the court from examining what is in the best interest of the child, as well as disregards the fact that children also have a constitutionally-protected interest to continue familial relationships regardless of any biological link. Because Texas has given heavyweight to the parental presumption, third-party parents’ rights are significantly limited in scope. This is where the issue lies — a de facto parent should not be treated as a third-party, instead they should be seen as a parent. If Texas redefined parent to include de facto parents, as the 2017 version of the Uniform Parentage Act suggests, this would allow individuals that have played a significant role in the child’s upbringing to completely bypass the actual care, control, and possession language and instead the court would view the de facto parent as a legal parent. This would allow the court to adequately consider the best interest of the child while still balancing the liberty interests of the biological parents. Redefining parent to include de facto parents allows the court to examine what truly should be the primary consideration in all custody cases: the best interest of the child.