Texas Attorney General Paxton Recognizes Parental Rights are Protected by Strict Scrutiny in New Attorney General Response Opinion,
KP-0241
Parents have been taught not to argue parental rights in family court. In fact, bringing up parental rights can be as damning as mentioning parental alienation in some courts still. The parents are laughed at by attorneys, scolded by judges, and told that the only thing that matters is the best interest of the child, and that the judge is going to decide it. Some attorneys who have tried to make the argument that fit parents determine the best interest of the child are laughed at and warned by judges as well. Attorney General Ken Paxton just released an opinion, KP-0241 that says “Courts presume that fit parents act in the best interests of their children,” that, “a fit parent determines the best interest of the child,” and that judges “[i]n evaluating parent-child relationships before making decisions about access to the child . . . refrain from imposing their own judgments in lieu of a fit parent’s decision regarding what is in the best interest of the child.”
AG Paxton goes on to summarize the well-settled protections parental rights receive. He cites caselaw like Troxel and Parham. Most of his opinion mirrors arguments Ron B. Palmer and Sherry Palmer have been making and teaching since 2013.
Proof that the Palmer’s Arguments Get it Right
How do you know that our constitutional parental rights teachings have had an impact, take a look at what the Attorney General Ken Paxton wrote in response to Rep. James White on February 22, 2019. The Attorney General was asked to respond to a question about what standards the court is required to apply in child custody suits “when balancing the rights of the State against the fundamental rights of parents to raise their children free from government intrusion.” We have been asking that very same question as well. Parents and attorneys who use our materials have been asking that question from our materials they find on our website and in our membership site. While the trial court’s have refused to answer this question, the AG does so in his response to White’s request for opinion letter.
Trial Court Judges are Violating Parental Rights
The AG’s response not only confirms parents have rights but also reveals the violations that Ron and Sherry Palmer identified in their green book, NOT in the Child’s Best Interest” back in 2013. The AG admits that parental rights are fundamental, protected by strict scrutiny, protected by the due process clause of the 14th amendment, and the 1st amendment. Importantly, in this opinion, that looks more like a brief, the AG reveals and identifies the flaws and legal logic that divorce courts are using to violate your rights, that the state is violating parental rights and putting a judge’s opinion above fit parents, that best interest is nothing more than viewpoint, and that parenting plans that are not least restrictive violate the due process clause which “includes a substantive component that forbids the government from infringing upon “certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest, and are least restrictive.
Paxton says that judges “refrain from imposing their own judgments in lieu of a fit parent’s decision regarding what is in the best interest of the child and cites Troxel, 530 U.S. at 68! (Funny since the AG has argued with us that Troxel is a grandparent’s rights case and doesn’t apply in suits between fit parents. It appears we have changed his mind.
Anyone going through a child custody suit, or a Suit Affecting Parent-Child Relationship (SAPCR), knows that judges impose their view of what is their idea of best on parents and choose the parent whose values and beliefs more closely align with the judge’s own personal values and beliefs, calling this the “better parent.” This makes the custody court a morality court, not a court of law. Ron B. Palmer talks more about this viewpoint discrimination in his online course and his books.
This is why you make these arguments. You don’t get protection of your rights without fighting for them. This AG opinion proves that parents fighting back are having an effect and are changing the way the family courts are addressing parent-child relationships in the family courts. You cannot change their opinions if you don’t challenge those opinions. And if you challenge those opinions, this change of opinion by the attorney general proves that you can be successful.
The battle is not won yet, but you are making progress. This AG opinion gives you something persuasive to use to not only show that the arguments you have been using from Fix Family Courts are supported but also to expose the contradictions and flaws the AG was forced to reveal, that best interest is viewpoint discrimination, that applying it to divorced parents violates equal protection, that you are entitled to a balancing test of your rights, and that the court’s final orders must be related to a compelling state interest and least restrictive based on narrowly tailored statutes. None of which best interest of the child (BIC) is or provides.
Why Did the AG Write this Opinion?
On November 27, 2018, Rep. White made a request for an opinion to the AG’s office. He asked the Attorney General to clarify the standards that the courts use regarding parental rights in child custody suits. White asked for this opinion on behalf of another representative because this representative didn’t qualify to ask for the opinion from the AG himself. You can find out who can ask for an attorney general opinion at the end of this post. White’s Request for Opinion letter was issued an identifier by the AG’s office. It is referred to as RQ-0258-KP. (RQ stands for Request for Opinion.)
Ron and Sherry Palmer have been teaching parents and attorneys to ask for attorney general opinions and to ask the courts this question in the declaratory judgments that the Palmers’ offer on their website. If parents had not learned that they have rights and are entitled to protection of these rights, been pushing the courts, and complaining to the legislators that they are not receiving these protections, legislators like White would not be asking the AG these questions.
Before this request could be made, parents had to learn that they had these rights from somewhere. Attorneys have not been teaching parents these rights. This is why we do. Attorneys get punished for making these arguments. Attorneys know that the state BAR does not support parental rights arguments in a parent versus another parent suit. This is one of the reasons several attorneys have filed suit against the state BARs in several states. So attorneys have not been a source of protection for parents who are being challenged by another parent and those parents have had to learn this information elsewhere. Parents and attorneys have found credible and powerful parental rights education from the Palmers since 2013 in books and in an online membership site available 24/7. And now have an attorney general opinion to back up that these rights absolutely do apply in all child custody suits, even suits between two disagreeing parents.
What is in KP-0241 Attorney General Kenneth Paxton Opinion?
In Paxton’s response, he says that strict scrutiny applies “in all instances” and that “all courts” are supposed to be applying strict scrutiny for parental rights when “a state statute infringes upon a fundamental liberty right protected under the Due Process Clause of the Fourteenth Amendment.”
He supports this contention with a case called Reno. Reno explains “that the Due Process Clause “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, “unless the infringement is narrowly tailored to serve a compelling state interest”).” Sound familiar? It should, we published this in our book “NOT in The Child’s Best Interest” way back in May of 2013. If you have been following the updates that we make in our membership portal, we have added that a parenting plan is a time, place, and manner restriction. By being able to dissect your order and classify the language in it appropriately, you can figure out what kind of orders you have. Once you know what the pieces are in your order, and what judicial review is required, what analysis is required, you can challenge the procedures used to deprive you and your child.
The AG admits that parental rights are fundamental and that they require certain protections. Paxton also says that “the State may not “infringe on the fundamental rights of parents to make child rearing decisions simply because a state judge believes a ‘better decision’ could be made.” He quotes a Texas case here called, In re Derzapf, from Texas in 2007 (quoting Troxel, 530 U.S. at 72-73). And then follows all of this with a section that explains that fit parents make the best interest determination of their children. So what’s the catch?
How is Child Custody Between Two Fit Parents Addressed in the AG Letter?
Paxton explains that the legislature passed additional standards to be applied in suits between two fit parents. This additional standard is “best interest of the child.” The AG skirts around clarifying whether he feels that best interest meets the strict scrutiny standard. Perhaps someone can submit that question to the AG.
Does Differing Opinions About What is Best for the Child Warrant Additional Standards be Applied?
The AG’s basis for distinguishing parents in divorce from other types of parents is when two fit parents disagree on matters of conscience in child rearing, or in other words, what is best for the child. The First Amendment undeniably and resoundingly protects your right to disagree, it absolutely protects your right to disagree on matters of conscience. Any opinion by a fit parent on the subject of what is best for their child is absolutely and undeniably a matter of conscience that is protected by the First Amendment.
The state of Texas cannot subject a class of parents to an additional best interest of the child standard where that classification is based upon a disagreement between those fit parents regarding matters of conscience in child rearing. This is an equal protection violation that is not permitted under our constitutional scheme.
The AG says that the Texas Supreme Court has authorized the use of best interest and provided a list of “non-exhaustive . . . factors to consider in ascertaining the best interest of the child. He uses obiter dicta from Reno stating that this is how they justified imposing viewpoint discrimination against divorcing, separating parents, or parents in disagreement. This obiter dicta contradicts the core holding in Reno that says the state may not violate the constitutional rights of the child when applying best interest. (You can read more on this at our Policy Center here.)
Does that Mean that Strict Scrutiny Applies in Suits Between Two Fit Parents?
He does say that it does apply, he says that there is just an extra standard called best interest. He doesn’t articulate how they work together because they cannot work together. And then he also fails how best interest is constitutional to burden only this class of parents with an extra standard.
I remember years ago when attorneys were telling us that family courts didn’t use strict scrutiny, they acted confused, and acted like they didn’t know what strict scrutiny was, when we introduced them to the finding we and argument we made in our book, “NOT in the Child’s Best Interest.” Attorneys were saying that family courts didn’t apply these things, and that they only applied best interest. That’s the catch. The courts and attorneys are still going to try and apply best interest and ignore strict scrutiny or try to tell you that best interest satisfies strict scrutiny.
You need to continue to push the courts and make them apply it. If you have read our materials then you know to do this and you know how to argue this. It’s because so many more parents are learning their rights that the legislators are paying more attention now and the Attorney General is changing his position. Just like Thomas Paine publishing his “Common Sense” pamphlet in 1776 encouraging the American people break from Britain’s control, and shortly after the United States published the Declaration of Independent and fought and won their freedom. Ron and Sherry Palmer are teaching you how to do the same thing with your parental rights. Your parental rights are what protect you now from the judges playing kings in black robes that sit in the family courts.
Paxton tried to tell parents in a prior court pleading that we couldn’t make an equal protection argument. And here is one right here. He is handing it to you on a silver platter. The individual rights of these parents are being held to a different standard than all other parents. How does that survive an equal protection analysis?
It’s Obvious the Rights Protections Arguments Are Working. You have made progress so keep pushing.
I don’t know of anyone else that was pushing strict scrutiny, narrowly tailored, and compelling state interest before us, Ron B Palmer and myself. This dates all the way back to 2013. Now in 2019, thousands of parents are making these arguments and look what you have now. Parents have an attorney general opinion that is extremely influential on judges throughout the state of Texas. That could not have happened if all of you had not picked up our books and taken our online courses and then taught others, taught your attorney, and educated your judge.
Now when you tell your judge that your rights should be protected at strict scrutiny, now they cannot say you are just an angry, loser parent, because the Attorney General of Texas is saying the exact same thing that we have been saying.
What is Strict Scrutiny?
Strict scrutiny is a form of judicial review that first requires the government to bear the burden of proof. The government must demonstrate that it has a compelling state interest or interest of the highest order, that it has statutory or equitable authority that is narrowly tailored to meet that compelling state interest without adversely affecting other rights, and the state must prove that the means it employs to achieve that compelling state interest are the means that are least restrictive on the rights of the people being affected. This means that if there is a less restrictive option available to the court the court must use it, or must demonstrate where that means has been tried and has failed.
This is how you get to equal possession. The least restrictive option available to a court is to provide equal time and equal rights to each parent. While both parents rights are limited, they are limited in the same way to the same degree, which means they are the least restrictive on both parents.
A very important note here is that the United States Supreme Court has already told us that the state’s interest in protecting the best interest of the child is only a substantial governmental interest which is a lower order interest than a compelling state interest. Therefore, the best interest of the child cannot be used to infringe rights protected at strict scrutiny. This is what makes best interest of the child incompatible with strict scrutiny.
The court cannot use a governmental interest that is merely substantial to justify an order that is more restrictive than necessary because substantial is not compelling.
Where Does Strict Scrutiny Come From?
The strict scrutiny concept can be traced back to a famous dissent in Korematsu from 1944. Chief Justice Earl Warren, U.S. Supreme Court Justice from 1953-1968, was the first to call it out as “strict scrutiny.” Strict scrutiny is sometimes referred to as the compelling state interest test, and what they mean is strict scrutiny. (Our membership site has more detailed discussion on this topic; strict scrutiny, compelling state interest test, and least restrictive means test.)
AG Paxton Changes his Mind on Troxel
Also interesting is that just last year the Attorney General argued that Troxel was a grandparents rights case and did not apply in a two-parent SAPCR suit. I guess Paxton changed his mind. Now he says that “[t]he U.S. Supreme Court’s 2000 opinion Troxel v. Granville contains the most recent expansive discussion of fundamental parental rights.” The way Paxton uses Troxel here is exactly how we use it in our book published in 2013, “NOT in the Child’s Best Interest, as well!
It’s not just the AG who is coming around to our way of thinking, but you will see many cases and many appellate and supreme courts who are coming around to our way of thinking.
Does this Mean You Don’t Need to Learn Your Rights?
Hardly. Attorney General opinions do not change the law and are not fact specific. But they are powerfully persuasive and influential because they show how or even if the Attorney General will fight to protect a statute when it is being challenged. “An attorney general opinion is a written interpretation of existing law. Attorney general opinions cannot create new provisions in the law or correct unintended, undesirable effects of the law. Attorney general opinions do not necessarily reflect the attorney general’s personal views, nor does the attorney general in any way “rule” on what the law should say. Furthermore, attorney general opinions cannot resolve factual disputes.” (From AG website General information on AG opinions. You can read who can request an opinion on the AG page.)
However, if you sue to challenge a state law impacted by an attorney general opinion it is incredibly unlikely that the attorney general would defend that statue in a manner that conflicts with his own opinion. So, if you sue in Texas to challenge the best interest of the child statute, the attorney general would look foolish if he then tried to claim that strict scrutiny does not apply when that statute is being used.
The powers that be are being brought to the realization that your parental rights are fundamental and require statutes that meet strict scrutiny kicking and screaming. The courts are not going to respect your parental rights and give you equal time with your child unless you know this information right now. The judges might be the last ones to accept this, because they are the ones who have to give up power.
Use this attorney general opinion when you make the pre-trial arguments that we have on this website.
What did Rep. White ask the AG?
Rep. White asked the AG “[w]hat “elements, factors, or standards” courts consider or apply “when balancing the rights of the state against the fundamental rights of parents to raise their child free from government intrusion,” in a letter labeled RQ-0258-KP.
What does the Attorney General Paxton Say about Parental Rights?
On February 22, 2019, the Attorney General responded to White’s question with the following Attorney General Opinion No. KP-0241. The AG letter said that parents have rights that are protected by the constitution and that those rights cannot be violated without balancing those rights against the state’s interest, and that the rights are superior to a judge’s idea of best interest.
You can read the entire text of the Attorney General opinion on parental rights here:
The AG Opinion text begins here:
Dear Representative White:
Does this mean you don’t need to learn your rights anymore and that the courts are going to respect your parental rights and give you equal time with your child? Hardly. Attorney General opinions do not change the law and are not fact specific. But they can be persuasive. “An attorney general opinion is a written interpretation of existing law. Attorney general opinions cannot create new provisions in the law or correct unintended, undesirable effects of the law. Attorney general opinions do not necessarily reflect the attorney general’s personal views, nor does the attorney general in any way “rule” on what the law should say. Furthermore, attorney general opinions cannot resolve factual disputes.” (From AG website General information on AG opinions. You can read who can request an opinion on the AG page.)
There is a lot that the AG leaves out of his letter but you can find it in our books and online courses in our membership site.
What did Rep. White ask the AG?
Rep. White asked the AG the following in RQ-0258-KP:
What “elements, factors, or standards” courts consider or apply “when balancing the rights of the state against the fundamental rights of parents to raise their child free from government intrusion.”
What does the Attorney General Paxton Say about Parental Rights?
On February 22, 2019, the Attorney General responded with the following in a letter called Opinion No. KP-0241.
Attorney General Opinion KP-0241
Here is the text of the Attorney General response to Rep. White in Attorney General Opinion KP-0241:
Dear Representative White:
You seek an opinion regarding the “elements, factors, or standards” courts consider or
apply “when balancing the rights of the state against the fundamental rights of parents to raise their
child free from government intrusion.”1 To address the standards courts apply in balancing those
rights, it is first necessary to understand the basis for fundamental parental rights and the scope of
those rights.I. The Due Process Clause of the Fourteenth Amendment protects fundamental
parental rights.Courts have long held that “the natural right existing between parents and their children is
of constitutional dimensions.” In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio
2003, no pet.); Wiley v. Sprat/an, 543 S.W.2d 349, 352 (Tex. 1976). As the U.S. Supreme Court
recognized almost a century ag_o, “[t]he child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize and pr~pare him
for additional obligations.” Pierce v. Soc ‘.Y o_fSisters, 268 U.S. 510, 535 ,(1925). Consistent with
this recognition, the Court has held that the interest parents possess with regard to their children is
a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
Troxel v. Granville, 530 U.S. 57, 65 (200’0).The Due Process Clause provides that no State shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. CONST. amend. XIV,§ 1. In addition to guaranteeing
fair process, the Court has held that this Clause includes a substantive component that forbids the
government from infringing upon “certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest.” Reno v. Flores, 507 U.S. 292, 301-02 (1993). The Court has long held that among the
fundamental rights protected by the Due Process Clause are certain fundamental parental rights.Troxel, 530 U.S. at 65; Pierce, 268 U.S. at 534-35; Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
(“liberty” includes the right of the individual to “establish a home and bring up children”). Over
time, the Court has identified several contexts in which these fundamental parental rights apply.a. Due Process protects the right of parents to make decisions regarding the
care, custody, and control of their children.The Due Process Clause “protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children.” Troxel, 530 U.S. at 66. In Troxel, the
Court held unconstitutional a state statute authorizing a court to grant visitation rights to any
person, even over the objection of a fit parent. Id. at 72-73. Noting that the statute placed the
best-interest-of-the-child determination solely in the hands of the judge, the Court concluded Jhat ··
it unconstitutionally infringed on the right of parents to make decisions about the care, custody,
and control of their children. Id.; see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It
is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder.”).b. Due Process protects the right of parents to direct the upbringing and
education of their children.In conjunction with the right to make decisions about the care, custody, and control of their
children, the Due Process Clause guarantees the right o,f “parents and guardians to
The Honorable James White – Page 3 (KP-0241)
that parents can and must make judgments about children’s need for medical care and treatment.
Id. at 603.d. Due Process, coupled with the First Amendment, protects the right of
parents to guide the religious training and education of their children.In conjunction with the First Amendment, the Due Process Clause protects the right of
parents “to guide the religious future and education of their children.” Wisconsin v. Yoder, 406
U.S. 205, 232 (1972). Wisconsin v. Yoder addressed a challenge to a compulsory education law,
which required school attendance until age 16, by Amish parents who objected to formal education
beyond the eighth grade. Id. at 207-11. Recognizing that the parents’ objections were firmly
grounded in their religious beliefs, and that compulsory high school education could significantly
alter the religious future of their children, the Court held that the First and Fourteenth Amendments
“prevent the State from compelling respondents to cause their children to att_end formal high school
to age 16.” Id at 234. In doing so, the Court emphasized that the “primary role of the parents in
the upbringing of their children is now established beyond debate as an enduring American
tradition.” Id. at 232.II. As a general matter, Courts apply strict scrutiny to review state statutes that
infringe upon fundamental parental rights.You ask generally about the standards courts will apply in adjudicating cases in which
parental rights are at issue, but you do not target a specific context in which those rights are
impacted. See Request Letter at 1. What elements, factors, or standards a court will use in
balancing state interests against the fundamental rights of parents will depend on the context in
which the balancing of interests arises.2 However, we can provide guidance on the general
standard courts use to balance these interests and then discuss certain contexts where courts may
apply additional standards.The U.S. Supreme Court’s 2000 opinion Troxel v. Granville contains the most recent
expansive discussion of fundamental parental rights. 530 U.S. at 63. In Troxel, the Court held
unconstitutional a Washington statute that allowed any person to petition for visitation rights at
any time if it was in the best interests of the children. Id. Overturning the decision to grant a
grandparent access to a child over the objection of the parent, the Court emphasized that if a parent
“adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State
to inject itself into the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent’s children.” Id. at 68-69. But the
plurality opinion in Troxel did not articulate a standard of review for addressing fundamental
parental rights. See id. at 80 (Thomas, J., concurring) (noting that the plurality and other
concurring opinions do not state the appropriate standard of review and suggesting strict scrutiny should apply);In the Interest of HS., 550 S.W.3d at 175 (Blacklock, J., dissenting) (“[The U.S.]
Supreme Court … has not articulated a standard of review by which to judge the constitutionality
of infringements upon parents’ rights.”).Nevertheless, both federal and state courts generally apply strict scrutiny if a state statute
infringes upon a fundamental liberty right protected under the Due Process Clause of the
Fourteenth Amendment. See, e.g., Reno, 507 U.S. at 302 (explaining that the Due Process Clause
“forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest”); Holley v. Adams, 544 S.W.2d 367,370 (Tex. 1976) (recognizing that because the case
involved the right of the parent to surround the child with proper influences, the case was “strictly
scrutinized”). “Strict scrutiny” requires the “Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” Reed v. Town of Gilbert, 135
S. Ct. 2218, 2231 (2015); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(recognizing that the Due Process Clause forbids the government from infringing upon a
fundamental liberty interest “unless the infringement is narrowly tailored to serve a compelling
state interest”).Consistent with this applicable standard of review, Texas courts and this office recognize
that “state statutes that infringe upon a parent’s right to control the care and custody of his or her
children are subject to strict scrutiny.” Tex. Att’y Gen. Op. No. GA-0260 (2004) at 5; see also
In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio 2003, no pet.). In re Pensom
addressed,the constitutionality of Texas’s grandparent visitation statute in light of Troxel. 126
S.W.3d at 253-54. Recognizing that the statute implicated the fundamental liberty interest of
parents in the care, custody, and control of their children, the court underscored the appropriate
standard of review: “Because a fundamental right is implicated here, we apply strict scrutiny and
will uphold the statute if it is narrowly tailored to serve a compelling government interest.” Id. at
254.III. Certain contexts regarding child custody determinations may warrant the
application of additional standards.While strict scrutiny will apply in any instance when a state statute infringes upon a
fundamental parental right, in the context of making custody adjustments or determinations, courts
have adopted additional standards that they utilize when applicable.a. When a court resolves disputes concerning conservatorship and possession
of a child, the court bases those decisions on the best interest of the child.While parents are presumed to act in the best interest of their children, in situations
involving divorce parents may have differing opinions regarding what is best for the children. In
addressing child custody disputes between parents or in instances of abuse and neglect of a child,
the Legislature has established the standard by which courts must resolve those disputes: “The best
interest of the child shall always be the primary consideration of the court in determining the issues
of conservatorship and possession of and access to the child.” TEX. FAM. CODE§ 153.002. The
The Honorable James White – Page 5 (KP-0241)
Texas Supreme Court provided a non-exhaustive list of factors to consider in ascertaining the best
interest of the child, including:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest
of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parentchild relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.Holley, 544 S.W.2d at 372 (footnotes omitted); see also Reno, 507 U.S. at 303-04 (‘”The best
interests of the child’ … is a proper and feasible-criterion for making the decision as to which of
two parents will be accorded custody.”).b. Before permanently severing parental rights, the State must provide clear
and convincing evidence thatthe termination is warranted.Both federal and Texas courts have held that the Due Process Clause requires a heightened
evidentiary standard before permanently terminating parental rights. “Before a State may sever
completely and irrevocably the rights of parents in their natural child, due process requires that the
State support its allegations [that support termination] by at least clear and convincing evidence.”
Santosky v. Kramer, 455 U.S. 745, 747-48 (1982); see also In Interest ofG.M, 596 S.W.2d 846,
84 7 (Tex. 1980) (requiring clear and convincing evidence standard of proof “in all proceedings for
involuntary termination of the parent-child relationship”). The Legislature defines “clear and
convincing evidence” as “the measure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX.
FAM. CODE § 101.007. Consistent with the U.S. Supreme Court case law, the Legislature
incorporated the clear and convincing evidence standard into the Family Code procedures
addressing termination of the parent-child relationship. See, e.g., id. §§ 161.00l(b), .003(a)(2),
.206( a)-( a-1 ).c. Courts presume that fit parents act in the best interests of their children.
In evaluating parent-child relationships before making decisions about access to the child,
courts presume “that fit parents act in the best interests of their children” and refrain from imposing
their own judgments in lieu of a fit parent’s decision regarding what is in the best interest of the
child. Troxel, 530 U.S. at 68. “The law’s concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for judgment required for making
life’s difficult decisions.” Parham, 442 U.S. at 602. “More important, historically it has
recognized that natural bonds of affection lead parents to act in the best interests of their children.”
Id. Due to this presumption, the State may not “infringe on the fundamental rights of parents to
make child rearing decisions simply because a state judge believes a ‘better decision’ could be
made.” In re Derzapf, 219 S.W.3d 327,333 (Tex. 2007) (quoting Troxel, 530 U.S. at 72-73). So
long as a parent is fit, “there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69; see also In re Scheller,
325 S.W.3d 640,642 (Tex. 2010).Parental rights issues arise in many different contexts, and diverse scenarios regularly occur
that require courts to evaluate those rights and balance them against the interests of the State in
new settings. While we do not attempt to anticipate every context a court will consider, or provide
an exhaustive list of the elements, factors, or standards that courts will apply in all settings, the
standards and presumptions discussed herein reveal how courts give fundamental parental rights
expansive protection under the Due Process Clause ..SUMMARY
The Due Process Clause of the Fourteenth Amendment
protects certain fundamental parental rights, including the right of
parents to make decisions concerning the care, custody, and control
of their children, to direct the upbringing and education of their
children, the right to make medical decisions on behalf of their
children, and, in conjunction with the First Amendment, to guide the
religious future and education of their children.Courts review governmental infringements on fundamental
rights protected by the Due Process Clause under strict scrutiny,
requiring that the statute serve a compelling state interest and be
narrowly tailored to achieve that interest.In addressing child custody disputes between parents or in
instances of abuse and neglect, .. of a child, the Legislature has
established the standard by which courts must resolve those
disputes. Pursuant to section 153.002 of the Family Code, the best
interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of
and access to the child.A court may not permanently and irrevocably terminate
parental rights absent clear and convincing evidence of the
allegations supporting the termination.In evaluating parent-child relationships before making
decisions about access to the child, courts presume that fit parents
act in the best interests of their children and refrain from imposing
their own judgments in lieu of a fit parent’s decision regarding what
is in the best interest of the child.Very truly yours,
KEN PAXTON
Attorney General of TexasJEFFREY C. MATEER
First Assistant Attorney GeneralBRANTLEY STARR
Deputy First Assistant Attorney GeneralRYAN L. BANGERT
Deputy Attorney General for Legal CounselVIRGINIA K. HOELSCHER
Chair, Opinion Committee
How Do You Get An Attorney General Opinion?
A letter is submitted to the Attorney General with the question you want to ask.
Can anyone ask the Attorney General for an opinion?
The way this works is only those authorized by law can request an attorney general opinion. The government code lists the officials allowed to request opinions.
Authorized requestors include:
- the governor
- the head of a department of state government
- the head or board of a penal institution
- the head or board of an eleemosynary institution
- the head of a state board
- a regent or trustee of a state educational institution
- a committee of a house of the Texas Legislature
- a county auditor authorized by law
- the chairman of the governing board of a river authority
- a district or county attorney
A person other than an authorized requestor can only make a request through an authorized requestor. The authorized requestor can submit the question to the attorney general. The requestor can ask for an attorney general opinion in hopes that the Attorney General will answer it. In this case, he did. And boy was it a great response for clarifying for parents how the AG sees parental rights. This is also guidance for the courts. While the AG’s opinion is from an executive agency and has no authority over the judiciary, his opinion has weight and is extremely influential.
Footnotes:
- Letter from Honorable James White, Chair, House Comm. on Corrections, to Honorable Ken Paxton, Tex. Att’y Gen. at 1 (Nov. 27, 2018) (“Request Letter”), https://www2.texasattorneygeneral.gov/opinion/requests-foropinions-rqs.
- As your question recognizes, the fundamental rights of parents regarding their children are not absolute.
Request Letter at 1. “Parental rights are fundamental, but neither the Texas Family Code nor the Constitution treats
them as plenary and unchecked.” In the Interest of H.S., 550 S.W.3d 151, 163 (Tex. 2018). “[A] state is not without
constitutional control over parental discretion in dealing with children when their physical or mental health is
jeopardized.” Parham, 442 U.S. at 603. However, while not absolute, parental rights are still fundamental and
accorded significant protections, as the standards discussed infra
EDITOR’S NOTE: This post has been updated to add additional education and make formatting changes on May 7, 2019.
