Judge Puryear, a Texas appellate court judge, believes that “preponderance of the evidence” standard is too low for determining infringement of the care, custody, and control of a child.

What is Preponderance of the Evidence?

Preponderance is a very low standard used by judges to decide minor disputes like in small claims court where no attorneys are allowed and the judge does not even have to apply any legal analysis. The issues allowed to be brought to small claims court are considered insignificant such that not much protection is needed to be applied because an error by the judge is not considered to damage you very much.

Family courts are being asked to do more than just divide furniture and money, the judge is being asked to deprive a child of a parent, and deprive that child of significant influence and parental authority. Even small deprivations are very significant. Going from seeing your child every morning and night to 4 or 8 mornings and at maximum 10 nights a month in what many states are calling standard possession or visitation is a significant reduction of influence and authority over your child. This is a much bigger deal than who gets the coffee table.


Judge Puryear noticed that the family courts are using preponderance and that it is inadequate according to the rights at stake and that property receives more protection than a parent-child relationship by the family courts currently.

“A parent’s interest in the companionship, care, custody, and management of his or her children is paramount and demands a respect much greater than that due the liberties derived from mere “shifting economic arrangements.” Stanley v. Illinois, 405 U.S. 645, 651 (1972)…However, in practice, issues of shifting economic arrangements often receive more protection. For instance, in a divorce, a party seeking to overcome the community property presumption must prove an item is separate property by the higher standard of clear and convincing evidence. Tex. Fam. Code Ann. § 3.003 (West 1998)….Limitations on parental access to children, however, need not be supported by evidence upon which the fact-finder could form a firm belief or conviction. This standard is totally at odds with both the fundamental nature of the constitutional rights at issue and the legislature’s stated policy and mandate.”

Judge Puryear may have agreed with the result reached by the majority in the Duck decision (In the Interest of J. R. D. and T. C. D. TX COA 2005), he did not agree that lowered standards of proof should be used in family court between two fit parents.

What is Clear and Convincing Evidence?

Clear and convincing evidence standards require more than just he said/she said. If one parent accused the other of bad parenting, they would need to provide the court with proof, testimony alone is not sufficient to interfere with a fundamental right. To understand preponderance and clear and convincing better we have a membership site where you can read more about it as well as watch video lectures on it.


He believes that family courts are not arriving at their family court orders properly, that depriving a fit parent and their child of maximum (equal when the parent is more than just satisfactory) time together involves rights important enough to justify strict scrutiny and clear and convincing evidence.


He believes that the standards requiring a parent to prove an abuse of discretion in the appellate courts is too strong and is blocking review of these unconstitutional orders and allowing the deprivation of the parent and child to remain in place and destroy the parent-child bond.


He believes that these protections apply in all proceedings, including child custody disputes between two fit parents, and not just termination proceedings.

“Even when it does not terminate rights, a court that trenches on a parent’s ability to rear his or her children may also violate the United States Constitution.” (Judge Puryear quoted this from Troxel)

 And therefore, even infringement or deprivation of these rights, warrant a higher standard of proof in the trial courts.

“Because of the gravity of the constitutional rights and interests at stake in such proceedings, and because the current standard is based upon outdated notions of parenting that predate the family code and run counter to the legislature’s stated policy concerning children’s best interests, trial courts should justify deviation from maximum feasible time with both parents by clear and convincing evidence and make factual findings, and appellate courts should carefully review those findings.” (emphasis added)


As Judge Puryear states when Texas passed “joint custody” they did away with the notion that a judge could use their power to be swayed in preference of one parent over the other. So all of this time parents have just been getting shafted and they have had equal parenting time in their laws the entire time? So guess what that means, just making a finding that the orders are “in the best interest of the child” is not sufficient!

Then why are parents having to still fight so hard and still not getting their equal time even after they fight for it? Perhaps appellate courts have gotten the family code wrong as well. Perhaps organizations like The Family Law Foundation saying that children “shuttling back and forth between homes is bad for them” is causing the judges to bend to their lies. Perhaps it is the Attorney General whispering in their ears that the State will lose their child support money and making cuts to judge salaries is causing judges to guard their paycheck more than protect your child.

What we do know is that denying you and your child proper due process and forcing you to litigate under these lowered standards causes unconstitutional orders, causes lengthy and unnecessary litigation over things that wouldn’t need to be litigated. These unconstitutional practices create need for more judges and hurts children. You are entitled to be heard on argument that your rights warrant more protection from the court before you are forced into a trial determining how they will strip you of those rights.

But how do you put this argument in front of your trial court judge? Well just putting this judge’s concurring opinion in front of the judge probably will not be enough, 1) because this judge even if his opinion was controlling would only control over the district that is covered by the 3rd district court of appeals, and 2. because this judge’s opinion is not controlling, and 3) because the appellate court will not hear your constitutional arguments if you do not.

There is a way to get this argument in front of your court, we have help for you here declaratory judgment motion samples. These motion samples lay out the argument for you. You don’t have to come up with it yourself. Attorneys all over the United States have started using these.

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.)