The Parental Presumption In Texas Family Law

The Parental Presumption In Texas Family LawTexas family law has many presumptions, but none is more important than the so-called parental presumption as it is applied in child custody litigation.

First, what is a presumption? Think of the starting line at a race with all of the runners having the same distance to cover before reaching the finish line. A legal presumption, however, gives a litigant a head start in the courtroom. Black’s Law Dictionary defines the word “presume” at “to assume beforehand.”

Tarrant County Child Custody Advice

In Texas Family law child custody suits, the court is to “assume beforehand” that the appointment of a parent as either sole conservator, or joint managing conservator of a child is in the child’s best interest. As a Tarrant County child custody lawyer with over 20 years’ experience, I tell Tarrant county divorce and child custody clients that the law presumes a fit parent should raise his or her own child. Makes sense, right?

Rights of Parents in Texas Child Custody Litigation

But life happens and the parental presumption can be rebutted upon a showing that appointment of a parent as sole or joint managing conservator of a child would significantly impair the child’s physical health or emotional development. At Schreier and Housewirth, we’ve represented hundreds of grandparents and other concerned family members in just these kinds of cases.

Texas Child Protection Dallas/Fort Worth, Texas

A word of caution here: “significant impairment” is more than a general disapproval of parenting practices. Here, we question prospective clients about the “red flag” issues that can be deemed “significant impairment” such as: family violence; sexual abuse; alcohol or substance abuse; inadequate living conditions; or chronic absence from school.

Modification of Texas Child Custody Orders

Seen from a different vantage point, the parental presumption is lost in a modification suit. Let’s consider the following scenario to illustrate the importance of this point. Assume grandma and grandpa file suit for custody of their young grandson due to parental drug abuse. The grandparents are awarded custody and three years later, the child’s mother files a modification suit to seek return of the child to her.

Texas law is clear that there is no parental presumption in a modification suit. In short, the mother has lost any advantage she may have previously had to win custody against a non-parent. Instead, she must demonstrate to a Tarrant County family law judge that there has been a material and substantial change of circumstances and that the proposed modification is in the child’s best interest.

If you are a parent, grandparent, or concerned family member seeking custody of a child, contact the experienced Fort Worth custody lawyers at Schreier & Housewirth for trusted advice and aggressive representation. For over 20 years, we’ve helped clients in Tarrant , Parker, Johnson and Dallas Counties protect the children they love.