According to Appellate Judge Puryear, in a concurring opinion in 2005 in Texas, the trial court judges have been applying the wrong standards and getting the intent of the joint custody portion of the family code wrong. He states that the joint managing conservator statute § 153.001, mandates “only minimal restriction on either parent’s possession or access,” id. § 153.193. Puryear says that “the family code no longer favors…the superior rights” of one parent over the other, but that the judges still follow the old judge made law prior to the enactment of the newer family code with joint custody in it. He says that judges right now treat the possession plans in the family code like those are the standard that is applied and they use it regularly whenever they want to end a child custody conflict in their court.

“Current family code chapter 153, governing conservatorship, possession, and access, no longer leaves that broad choice to the trial court; it has effectively chosen both parents as the children’s conservators by providing for joint managing conservatorship, Tex. Fam. Code Ann. § 153.005 (West 2002), articulating the policy that parents should share in the rights and duties of child rearing and have frequent, continuing contact with the child, id. § 153.001, and mandating only minimal restriction on either parent’s possession or access, id. § 153.193″


Judge Puryear goes on to say that the legislature intended for the judges to award maximum time with each parent who is more than just a satisfactory parent. And that the current low standard of proof (preponderance of the evidence) in the trial courts and the high bar (abuse of discretion) to overcome in the appellate courts is allowing unconstitutional orders depriving fit parents of their full fundamental parental rights to take place and remain in place. He states:

“Thus, even against the background of these monumental rights and explicit legislative directives to limit a parent’s time with a child only as necessary, see Tex. Fam. Code Ann. § 153.193 (West 2002), a trial court, if it were ever so slightly more persuaded in one direction than another, may make a decision profoundly affecting the rights and abilities of parents to raise their children, and unless we can say that no reasonable mind could have reached the court’s conclusion, we leave it undisturbed.”

The father in this appellate case, Duck, was asking for a custody modification to 50/50 equal custody. He raised constitutional rights arguments. The appellate court however never heard his constitutional arguments because he did not meet the bar for change in circumstances at the trial court level. Therefore the Court affirmed the trial court’s decision and the violation of his and his child’s constitutional rights went un-reviewed and ignored.

“Duck challenges the court’s failure to decrease child support and to grant further modification of the possession schedule, and the court’s finding that it was not in the children’s best interest to implement a 50-50 division of periods of possession. Because the evidence supports the district court’s conclusion and because we cannot say that the court abused its discretion or otherwise committed error, we affirm the court’s order.”

Judge Puryear, while not the judge who wrote the majority opinion and therefore it is not controlling, states that Duck and other parents have not been able to receive justice on these rights issues because the standard that the appellate courts use block them from being able to be heard.

Puryear says that “Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion.” In other words, the courts have employed an abuse of discretion standard of review. And this makes it very, very hard to be heard..


Judges defaulting to the minimum standard of possession in the family code, Puryear states, “falls far short of showing proper respect to the legislature’s deliberate policy decisions commanding Texas courts to support and cultivate relationships between children and their parents so long as those parents are fit and to implement maximum parent-child contact to actively preserve family relationships often made all too fragile by parents’ inabilities to set aside personal animosity long enough to recognize their children’s need for their other parent.”

“Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion.”

You can access the full concurring opinion regarding the Duck case here. We do not use the main opinion of this case as it never reached the merits of Duck’s constitutional arguments.

However, just because it is not a controlling opinion in this case, does not mean that this is not correct, and also does not mean that this judge eventually will not write their own majority opinion with this same content in it, then making it the controlling opinion of that district.

Because no government body is to violate your constitutional rights without proper due process and procedure, you can begin using these arguments in your court to demonstrate that the logic in your declaratory judgment motions are backed by the belief of this judge in Texas, and that the only reason you do not have a controlling opinion yet is for the very reason that this judge states, the abuse of discretion standard is improperly blocking review of the deprivation of these “monumental” rights being infringed without proper 14th amendment due process protections.


There is a way to get this argument in front of your court, we have helped you out with this by completely laying out that argument for you in our declaratory judgment motion samples. This Judge’s opinion helps you show your judge that the reasoning and argument in these motions are valid and solid. The reason you would have the the necessity of these would be if there is no controlling opinion for your court that requires your judge to protect your parental rights equally and protect you from unnecessary litigation. You would be asking your court to respond to these motions asking what rights your court believes you have and what protections your court will provide for these rights. This helps you to know what you will be required to litigate, what rights are at issue, and who has the burden of proof and what standard of proof the court intends to use. (These just name a few of the reasons and things that these declaratory judgment motions do.)

Puryear quote