Texas father battles deceased ex-wife's fiancé for custody of 5-year-old daughter

By Samuel Smith, Deputy Managing Editor Monday, April 27, 2020

A Texas father had his case heard before the state Supreme Court through video conferencing Wednesday as he seeks to keep full custody of his 5-year-old daughter after a lower court awarded joint custody to the fiancé of the child’s deceased mother.

National parental rights activists are paying close attention to the case centered around the basic question: Should a fit father be forced to share custody of his daughter with an unrelated man?

Some advocates fear that a ruling against the biological father by the Texas Supreme Court could set a dangerous precedent when it comes to the rights of biological parents to object to non-relatives who want visitation rights and custody rights over their children. 

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“My daughter doesn’t know him. She lived with him cumulatively under six months,” the father, identified as “Chris,” said in a recent social media video about his ex-wife’s fiancé. “I thought that as the biological father, I [should] win. We learned quickly, that is not the case.”

Chris’ case dates back to 2018 when the child’s mother died of injuries caused by a tragic car accident.

Since the parents' separation in 2016, the mother and father shared 50/50 custody of their child even though the mother sought a modification to the agreement before her death. 

Since her passing, the child, identified as “Ann,” has spent most of her time living with her father as he has battled in court to keep full custody. 

Initially, after the mother’s death, the maternal grandparents filed for joint custody of their grandchild in July 2018. 

The mother’s fiancé, identified as “J.D.," who had gotten engaged to the mother three months before her death, also filed for joint custody a month later in August 2018.

The grandparents' request for joint custody was denied in court because they were unable to prove that the father was an unfit parent, according to Jeremy Newman, director of public policy at the Texas Home School Coalition, an organization supporting Chris’ quest to maintain full custody.

However, the trial court granted the fiancé joint custody of Ann on May 8, 2019.  

Advocates for the father say the decision essentially gives the fiancé the right to make certain medical decisions for the child and the right to have Ann stay with him on various days each month. 

In July 2019, Chris filed an emergency appeal to the Fort Worth Court of Appeals asking the appellate court to strike down the lower court’s ruling on grounds that it violated his constitutional rights as a parent. However, his request was denied.

“So the argument being made is that because [the fiancé] cohabitated with the daughter for between five and six months, cumulatively, that he developed a strong enough relationship with her that he should be entitled to custody of her,” Newman told The Christian Post.

“And in the arguments on top of that is that not only is he entitled to custody, but when he makes that request, he doesn't have to overcome any type of constitutional presumption in favor of the father.”

Newman explained that the fiancé’s legal argument is based on an interpretation of Texas law that allows a person to request custody of a child if the individual has developed a parent-like relationship with the child. 

“Basically, that is what [the fiancé] is arguing he has,” Newman added. 

“Even during the entire time that the daughter lived in the same house as him, she only lived there because her mother lived there. The mother was the one taking care of the child and the boyfriend cohabitated with them. And now, the argument is basically, ‘Hey, I managed to become a parent to that child in about a six-month window where she happened to live with me. And not only am I a parent, but I am just as much a parent as the actual father is.’”

Newman argues that it's a requirement under the U.S. Constitution for parties looking to restrict the custody rights of parents to prove that the parents are unfit. 

“Someone who happens to live in the home has the right to request custody. But to win custody, they would have to overcome that [parental presumption],” Newman said. “Now, the boyfriend is arguing that ‘I don’t have to overcome that presumption.’”

If the fiancé prevails in the case, it could open the door for other non-relatives such as nannies or live-in boyfriends to claim legal rights in Texas to other people’s children, Newman contended.

In August 2019, Chris appealed to the Texas Supreme Court. Newman said he's optimistic after attending Wednesday’s virtual hearing. 

“I don’t want to hypothesize any justice's final decisions but you can infer from their questions what some of them were thinking,” Newman described, adding that Justice Jeffrey Boyd on a couple of occasions challenged the fiancé’s attorney on issues of parental presumption. 

“Justice Jimmy Blacklock also seemed to have strong opinions on it. But most of the justices didn’t seem to want to tip their hand too much.” 

Michelle O’Neil, an attorney representing J.D., argued that parental presumption does not apply to the case since the case involves a modification of the original custody arrangement. 

“The precedent before us has held that the parental presumption is determined in the original suit between the two parents and that the parental presumption does not carry forward into the modification suit, regardless of the privity of the parties,” O’Neil said, according to The Texan.

Holly Draper, an attorney representing Chris, argued in court that the parent doesn’t lose his constitutional right because he is involved in custody modification. 

Amicus briefs in support of the father were filed by the Texas Home School Coalition, the Texas Public Policy Foundation, the Alliance Defending Freedom, Texas Attorney General Ken Paxton and the Christian conservative activist group Texas Values. 

In its brief, the conservative legal group ADF argued that the right of a parent to care for his or her child is "perhaps the oldest of the fundamental liberty interests" recognized by the U.S. Supreme Court.

ADF has had multiple successes at the U.S. Supreme Court in recent years. The organization cited the 2000 Supreme Court case of Troxel v. Granville where the court struck down a Washington state law that allowed any third party to petition the state of child visitation rights over parental objections. 

An amicus brief was also filed by the State Bar of Texas Family Law Council asking the Supreme Court to deny the father’s petition on grounds that the court should not “apply either a fit-parent presumption or parental presumption to child-custody modification cases.”

The child is currently living full-time with her father as the Texas Supreme Court halted enforcement of the lower court’s ruling until a final decision is made. 

The Texas Home School Coalition launched a digital campaign to support the family called “Let Her Stay.” The group also published a short video aimed at spreading awareness of Chris’ case.