Parental Rights – VanSickle Family Law Clinic

Fit Parent Presumption

Just how strong IS the fit parent presumption in Texas? Before June 26, 2020, it was fairly strong but the Texas Supreme Court delivered an opinion that day that made the fit parent presumption almost impossible to overcome. In a unanimous decision, the Texas Supreme Court held that the fit parent presumption is “deeply embedded in Texas law.” The court stated that it was the fit parent’s decision, NOT the court’s to decide if it was in the best interest of the child to have access to a non-related third party.

In this particular case, there was a pending modification of custody suit when the child’s mother died in an unfortunate car accident. The father had requested that the suit be dismissed afterwards, and the maternal grandparents along with the mother’s fiancé intervened to obtain joint managing conservatorship.

There was no evidence presented to show that the father was an unfit parent. There was testimony provided from a therapist of the child who said there was concerning behavior from the father, such as spanking the child, but the court found the father was certainly a fit parent. Ultimately, the court decided that it was a parent’s fundamental right to make decisions for the child, including who the child has access to see. The court did not award custody to either the mother’s fiancé or the maternal grandparents. Prior to this, there was a strong parental presumption, but there was not guidance such as this from the Texas Supreme Court. Since this heavily anticipated ruling came out, this case has been heavily cited to, supporting a very strong fit parental presumption which has become extremely difficult to overcome especially for related third-parties and non-related third parties.

Reference: In re C.J.C., 603 S.W.3d 804 (Tex. 2020).

Written by: Shereen Baig , 3L

With the ICWA Hanging in the Balance, How will the Native American Children of Texas be Affected

On October 4, 2018, United States District Judge Reed O’Connor declared that several provisions of the Indian Child Welfare Act (ICWA) are unconstitutional. One provision deemed to be unconstitutional ensures that “in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child’s extended family;(2) other members of the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C.S. § 1915. This battle began a year ago when Texas, Indiana, Louisiana, and several individuals filed suit requesting that courts declare named sections of the ICWA to be unconstitutional. Several tribes including the Cherokee Nation, Oneida Nation, and Quinalt Nation, responded to this suit. In the aftermath of Judge O’Connor’s determination, the same tribes are requesting a stay that would delay the implementation of his ruling until an appeal is heard.

How did we get to this point? According to congressional findings at the time of the ICWA’s passage in 1978 an “alarmingly high” percentage of Indian families were disrupted by the “often unwarranted” removal of children by nontribal entities. 25 U.S.C.S. § 1901. At the time some studies listed the number of Indian children removed from their families as 25%-35%. Congress further noted that States often “fail to recognize the essential tribal relations of Indian people and cultural and social standards prevailing in Indian communities and families.” 25 U.S.C.S. § 1901. Fast forward forty years to the present day and states are claiming that the child custody provisions of ICWA offer Native Americans preferential treatment and violate the due process clause of the United States Constitution.

How could this affect Native-American children in Texas? In response to this ruling several Indian Nations submitted a brief to the Court essentially requesting a pause on implementation of repeal until an appeal is heard. In their brief they reported potentially devastating consequences. Among these consequences were the loss of statutory rights in state proceedings. This could mean that Indian parents no longer receive notice before parental-rights termination proceedings are initiated, they may also lose their right to challenge child placement in these proceedings. Ultimately, the Nations assert that the same problems that Congress intended to solve by enacting ICWA would be exasperated by its repeal.

Safety is Paramount!

Image result for rae carruth In 1999, first round NFL draft pick Rae Carruth hired a hitman to kill his then-pregnant girlfriend to avoid paying child support. Although she didn’t die at the time, she later died after giving birth from complications of the attempted murder. A son was born with cerebral palsy as a result of trauma he suffered from the shooting. Carruth was found guilty of conspiring to murder the son’s mother in 2001, and sentenced to serve nearly 19 years in prison. He is scheduled to be released October 18, 2018.

Last month, Carruth expressed his remorse for the killing and his intent to seek custody of his son. But is he even “fit” to care for his disabled son? Texas law says no! Texas law public policy dictates that child custody decisions should be made based on the child’s best interest. A disability adds a special consideration to the already substantial weight of best interest. That consideration is the safety of the disabled child.

When looking to the best interest of a child, courts have traditionally considered about 9 factors announced in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). However, the best interest of a child could literally mean anything and everything. For this case with Rae Carruth seeking custody of his disabled son, the primary consideration here should be the concern for the safety of the child. Under Texas law, Carruth would be subject to involuntary termination of his parental rights under 161.001(b)(1)(T)(i) because he was convicted of murdering the child’s mother.

The fact that his rights would be subject to termination defeats his argument for gaining custody of his son. Further, from a best interest of the child standpoint, would it ever be in the best interest to place a child with the parent who is responsible for the death of the other parent? I say that it would not be. There are three factors in particular that would defeat any attempt by Carruth to establish that it is in the best interest of his son to be place with him. Those factors are: (1) the emotional and physical needs of the child now and in the future, (2) the emotional and physical danger to the child now and in the future, and (3) the stability of the home or proposed placement. The child’s emotional wellbeing would significantly be impaired by being placed with his father and it could create a really dangerous precedent in the law. This child should not be subjected to a constant reminder of the person who murdered his mother. This consideration goes hand and hand with the concern of his physical wellbeing. It has been established that the cause of the child’s disability was caused by the father’s actions. The child suffered an immense strain during his mother’s pregnancy when his father attempted to murder his mother. None of these circumstances point to a placement with Rae Carruth being in the best interest of his son. Lastly, there is a good chance that the father’s home will not be a stable place for the child. Carruth is currently serving a jail sentence for his role in the death of the son’s mother. He literally hired a hit man to kill her because she did not obey his wishes to terminate the pregnancy that resulted in his son. In my opinion, an individual that would go to such lengths is not a very stable person. The child would likely suffer immensely in the home of such an unstable person. Therefore, it would be contrary to the best interest of the son to be placed with Carruth.

Rae Carruth should not be allowed to seek custody of his son. Although this case will likely be heard under North Carolina law, reviewing it under a Texas Law standard, Rae Carruth’s parental rights would have likely already been terminated. Further, it is contrary to the best interest of the child to place him with his father. Rae Carruth’s request should be denied.

Image result for rae carruth

Written by: Kourtney Malone-Parker

Oh, baby! Surrogacy Laws in Texas

In recent news, it has come out that Kanye West and Kim Kardashian West are pregnant with their third child – but this time, they are pregnant by surrogacy. A surrogate mother is defined as one “who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman.” While many think of surrogate mothers being used by homosexual couples or those struggling with infertility, surrogacy has also become popular over recent years for mothers who, like Kim, are unable to carry a baby themselves due to health reasons. In Kim’s case, her first two pregnancies put her at risk for both preeclampsia and placenta accreta. Subsequently, surrogacy has brought about an entirely new sector of family law. This blog will discuss where surrogacy laws in Texas stand today.

There are two different types of surrogacy – gestational and traditional. In Texas, Section 160 of the Texas Family Code covers surrogacy. In a gestational surrogacy, the woman carrying the embryo is in no way related to it. This is because the egg and sperm that make up the embryo are derived from the so called “intended parents.” However, egg or sperm donors may also be used if necessary. In a traditional surrogacy, the woman carrying the embryo is the embryo’s biological mother. This is because the surrogate mother is artificially inseminated by the intended father’s sperm. In both types of surrogacy, the surrogate carries the embryo until birth and then gives the baby to the intended parents to raise. In Kim and Kanye’s case, a gestational surrogate was used.

It should be noted that Texas and many other states do not allow traditional surrogacy. In Texas, only gestational surrogacy is covered by the Texas Family Code. This is due to the fact that if the surrogate mother is married, her husband is presumed as the father of the child. This causes clear issues in determining the legal parentage of the child.

Section 160.754 of the Texas Family Code lays out the guidelines for entering into a surrogacy agreement. Specifically, a prospective surrogate mother, her husband (if she has one), any sperm or egg donors (if there are any), and each intended parent may enter into a written agreement providing that:

(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

(2) the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;

(3) the intended parents will be the parents of the child; and

(4) the gestational mother and each intended parent agree to exchange throughout the period covered by the agreement all relevant information regarding the health of the gestational mother and each intended parent.

The Texas Family Code also requires that the intended parents be married, that the surrogate mother’s eggs may not be used in the pregnancy (this would make it a traditional surrogacy), and that the child may not be conceived by means of sexual intercourse. The agreement must be entered into before the 14^th day preceding the transfer of the embryo (or sperm or egg, if using a donor) occurs for the purpose of implementation (or conception, if using a donor).

The gestational agreement also has strict guidelines regarding what information the physician performing the assisted reproduction procedure must provide to everyone involved in the agreement. These include:

(1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed;

(2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;

(3) the nature of and expenses related to the procedure;

(4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures; and

(5) reasonably foreseeable psychological effects resulting from the procedure.

These requirements highlight not only the importance of understanding everything that goes into the complicated process of surrogacy, but also outline important health risks that both the surrogate mother, her husband (if she is married), and the intended parents should be aware of. In fact, section 160.754 of the Texas Family Code continues to state that a gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. This goes to show that the laws behind surrogacy are in place to promote the health of the mother and the embryo. However, a surrogate mother is not expected to make decisions that would adversely affect her own health. If a mother is using a surrogate mother to carry her baby to safeguard her own heath, she can’t ask the surrogate mother to risk hers.

Kim held a cherry blossom themed baby shower this past Saturday, November 11, showing that although she is not experiencing a “traditional” pregnancy this time around, she is still a mother-to-be and is celebrating bringing a new baby into the world. Kim and Kanye’s surrogate mother is due in January of 2018, and Kim just announced they are having a baby girl. She will join her siblings North West (4) and Saint West (1), whom Kim carried and gave birth to herself.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.