Jeremy Newman, Public Policy Director and Attorney Cecilia Wood for the Texas Homeschool Coalition’s hard work has paid off so far. They spent their time educating the house representatives that fit parents were losing their children to grandparents and CPS in violation of the constitution as interpreted by the Supreme Court of the United States in Troxel.
Before you get too excited however, these bills provide NO further protection for two parents in divorce in disagreement. In fact, upon closer examination of these bills, HB 1899 and SB 816 (identical bill to HB 1899) you will see this. In fact, these bills might actually make it more difficult for a noncustodial parent to get more rights and time to their child or a parent who has gone through a temporary difficult period of time in their life like suffered a short bout of depression or a PTSD episode to get any time or rights to their child, even supervised! The Chair of the Senate committee, Chair Huffman, brought this issue up in the Senate State Affairs committee on Monday. (You can read more and watch the full video about this discussion here.) This was not discussed or brought up in the House committee who just passed their bill through to the full house floor. And I, Sherry Palmer, during my testimony to the Senate raised two issues with these bills, if a “compromise” is made between the two fit parents by the judge, it needs to be the least restrictive, and proper due process requires that a proper adjudication hearing is held regarding the rights before a judge forces litigation over the rights in the first place. Without these amendments, these bills leave parents of divorce and single parents who are in disagreement subject to the same abusive and expensive court process they have faced for the last several decades. (You can see my testimony on this post here.)
The Senate bill SB 816 (identical bill to this one) is not expected to make it through the State Affairs committee. Testimony was heard on this bill on Monday, May 1, 2017. However, it’s identical bill, House Bill, HB 1899, has made it through the Juvenile Justice & Family Issues committee and Dutton says is going to the full House floor. Once the bill hits the house floor this bill will be open for amendments by any of the representatives. We make some suggested amendments to the bill below. If you want these constitutional protections to apply to parents in disagreement, you will have to discuss amending the bill with your representative. You can contact your representative here. (Keep reading and we will explain the problems with this bill more below.)
First amendment that we have suggested is to add the words “least restrictive” compromise. The bill reads that if there are two disagreeing fit parents then the judge can issue an order that is a “compromise.” No guidance is in the bill for what this means so you have an opportunity to add some guidance here. You can see the full text of the bill in this post here.
But that’s not the entire bill now. The bills have been substituted to include HB 2643.
This second part that comes from HB 2643, read as follows:
“relating to the rendition by the court in a suit affecting the parent-child relationship of a temporary order over the objection of the child’s parent. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 105.001, Family Code, is amended by amending Subsection (a) and adding Subsections (a-1) and (a-2) to read as follows: (a) In a suit, except as otherwise provided by Subsection (a-1), the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order: (1) for the temporary conservatorship of the child; (2) for the temporary support of the child; (3) restraining a party from disturbing the peace of the child or another party; (4) prohibiting a person from removing the child beyond a geographical area identified by the court; or (5) for payment of reasonable attorney’s fees and expenses. (a-1) The court may not render a temporary order under this section over the objection of the child’s parent unless: (1) the court determines that the objecting parent is not a fit parent and states on the record the court’s basis for that determination; (2) the court determines that failing to render the temporary order will cause significant impairment to the child’s physical health or emotional well-being; or (3) the court is rendering the temporary order over the objection of a fit parent at the request of the child’s other parent, who is a fit parent. (a-2) For purposes of Subsection (a-1), a parent: (1) is presumed to be a fit parent; and (2) may be determined not to be a fit parent only if the court determines that the parent does not adequately care for the parent’s child. SECTION 2. The change in law made by this Act applies only to a suit affecting the parent-child relationship pending before a trial court or filed on or after the effective date of this Act. SECTION 3. This Act takes effect September 1, 2017.”
What does this mean for two fit parents in disagreement?
The first part of (a-1) where it reads “(1) the court determines that the objecting parent is not a fit parent and states on the record the court’s basis for that determination” appears to be saying that the judge now, without requiring a proper adjudication hearing is going to also determine within the proceeding whether the parent is “fit.” Bypassing proper termination procedures that actually protect parent’s rights.
The next section, “(2) the court determines that failing to render the temporary order will cause significant impairment to the child’s physical health or emotional well-being” but does not require the court to use the same codes that cps uses in Chapter 262 and 261. The major problem here is that there is no definition of “physical health or emotional well-being” and the judge, as we have personally seen them do, can assign any meaning they want to it. They can punish you for anything they choose. They can consider martial arts “impairment to the child’s physical health.” We know parents who have suffered this and this bill will not prevent this same suffering.
And the last section of (a-1), “(3) the court is rendering the temporary order over the objection of a fit parent at the request of the child’s other parent, who is a fit parent” is the section that puts divorced and single parents in disagreement with the other parent right back in the same unequal treatment boat they are in today. This means your fundamental constitutional rights depend upon your ex-spouse agreeing with you. How would you like to lose your right to free speech just because your neighbor doesn’t like what you have to say and disagrees with your opinion?
And then you have (a-2) where a parent is “presumed to be a fit parent” unless “the parent does not adequately care for the…child.” What are they going to consider as adequate care? And will the same standard apply to both parents?
So the bill is essentially saying to the judge that the parents are presumed to be fit, however, you can declare them unfit with nothing more than the judge’s idea of what adequately caring for the child is or you can bypass the rights by saying that the temporary order was necessary to prevent “significant impairment to the child’s physical health or emotional well-being,” or in the case of two fits parents in disagreement, you can just bypass the rights period. The entire point of our constitutional guarantees is that they cannot depend upon a single bureaucrat’s opinion, but that is exactly what this bill does. It makes your fundamental rights dependent upon nothing more than a sole bureaucrat’s personal opinion.
It appears that this bill will just cause the judges to change their words from “in the “interest” of the child to the temporary orders are necessary to prevent “significant impairment to the child’s physical health or emotional well-being.” Isn’t that what the judges believe they are already doing in the first place when they claim their orders are “in the best interest of the child?” Again, your fundamental rights have no meaning under this bill and are not rights at all.
These bills do not provide protection for parents in disagreement and do not provide protection for the children of those parents. Judges can still assign their own idea of what is considered damaging to the child’s physical health or emotional well-being. Parents will still get random results.
Just look at what judges declare already. There are judges making orders claiming that it is harmful for a parent to express their sadness to a child, orders that claim that a parent providing two computers or two pairs of tennis shoes is harmful to a child, orders that claim that a parent wanting equal time with their child is harmful, orders that claim that it is harmful to the child to be with the other parent when it upsets the primary parent, and orders that claim putting your child in martial arts class is harm. And the list goes on and on. And the list will continue to go on as long as the bills being proposed continue while the bills attempt to only provide constitutional protection for certain parents and exclude others who they disfavor.