Texas Family Law Insiders — Parental Rights Gain Ground in New Custody Laws

Host: Holly Draper
Date: September 3, 2025

Overview

This episode features Holly Draper, CEO and managing partner at the Draper Law Firm, providing a comprehensive update on significant legislative changes affecting parent vs. non-parent child custody litigation in Texas. The episode focuses on new statutes passed in the latest legislative session, tightening rules regarding non-parent standing, imposing new affidavit requirements, and codifying the “fit parent presumption” with a clear and convincing evidence standard. Holly explains the legal history, implications for ongoing and future cases, and offers strategic guidance for attorneys representing both parents and non-parents.

Key Discussion Points & Insights

1. Legislative Background & Why It’s a Big Deal

• Holly, who handled the landmark In re CJC case to the Texas Supreme Court, discovered these substantial changes only recently. She emphasizes their impact:
  • “These are some very big changes that are going to really restrict what non parents can do in Texas in custody cases. … universally be a victory for parental rights and for parents who do not want non parents involved in their custody case.” (01:44)

2. Changes to Standing Under Texas Family Code § 102.003

• Standing = The legal right to file suit.
• Several standing statutes were changed, mainly to make it more difficult for non-parents to initiate custody lawsuits:
  • § 102.003(a)(9):
    • Old: Gave standing to anyone with “actual care, control, and possession” of a child for at least 6 months.
    • New: Requires “exclusive care, control, and possession” (excluding foster parents/CPS placements).
      • “Having exclusive care, control and possession is a much, much, much harder burden for that non parent to meet.” (04:01)
    • Raises questions about reconciling “exclusive care” with statutory language allowing non-continuous periods (potential appellate issue).
  • § 102.003(a)(11):
    • Old: “Stepparent statute” gave standing to anyone living with a child & guardian/conservator/parent for 6 months if the parent died.
    • New: Removed entirely.
      • “I would say getting this statute removed is a huge win [for parents].” (07:28)
  • § 102.003(a)(12) (now a11):
    • Now covers both foster parents and kinship caregivers.
    • Disqualifies standing if the child returns to a parent before case dismissal—tougher for foster parents seeking adoption after reunification.
  • § 102.003(a)(13) (now a12):
    • Standing for relatives extended from “third degree of consanguinity” to “fourth”—adds great-grandparents and cousins if both parents have died.
  • Effective Dates: Changes apply to suits filed on or after September 1, 2025.
    • Tactic: If representing a parent in cases filed before this date, argue that non-parent standing wouldn’t exist under new rules. (12:20)

3. New Affidavit Requirement for Non-Parent Standing (§ 102.0031)

• Non-parents filing under any § 102.003 provision must now submit an affidavit stating:
  1. Denying their relief would significantly impair the child’s physical health/emotional development, and
  2. Supporting facts.
• Courts must dismiss non-parent suits lacking a sufficient affidavit.
  • “This is a really, really big change … a lot of case law out there … to strike the non parent.” (13:35)
• Applies to all cases pending as of September 1, 2025, NOT just newly filed cases.
  • Non-parents must file amended pleadings and affidavits; parents’ attorneys should swiftly move to strike insufficient filings.

4. Codification of the Fit Parent Presumption & Burden of Proof

• § 153.002 (Original Suits):
  • New language creates a strong legal presumption:
    1. Parents act in the child’s best interest.
    2. It is presumed best for children to be in the care of their parents.
  • Non-parents can rebut only with clear and convincing evidence that denying them access would significantly impair the child’s physical health or emotional development.
    • “Clear and convincing evidence standard now applies… very high burden to overcome.” (16:05 & 23:20)
  • Court orders must detail specific facts supporting any decision granting non-parent relief.
  • Applies to all cases pending or filed after September 1, 2025.
• § 156.008 (Modifications):
  • Same presumption applies in modifications, not just original suits.
  • The presumption is only overcome by clear and convincing evidence.
  • If a prior non-parent order was agreed, the parent retains the presumption in later litigation (parent can reclaim full rights after improvement).
  • If a prior order was litigated and presumption defeated, res judicata applies—the non-parent keeps their standing.
  • Strategic notes for agreed vs. litigated orders and impact on non-parent rights. (20:53)

5. Practical Implications and Strategies

• Likely outcomes include:
  • Dramatic rise in difficulty for non-parents to initiate or maintain custody/visitation lawsuits.
  • Grandparent and non-parent petitions require strong supporting facts and procedural compliance.
  • Agreements between parents and non-parents need careful drafting—for parents, avoid conceding the fit-parent presumption unless absolutely necessary.
    • “Don’t agree to include in that agreement that the fit parent presumption was overcome if you can at all avoid it.” (22:53)
  • Prior agreed orders do NOT eliminate the parent’s future presumption.
• Open Questions:
  • How will courts interpret “exclusive” possession, especially with non-continuous periods?
  • How much prior conduct can non-parents use if a parent reasserts rights after an agreed order?
  • “We’re all going to have to litigate and … deal with [these changes] in the court of appeals.” (24:58)

Notable Quotes & Memorable Moments

• On the importance of the changes:
  “These are some very big changes that are going to really restrict what non parents can do in Texas in custody cases. …universally be a victory for parental rights and for parents who do not want non parents involved in their custody case.” — Holly Draper (01:44)

• On the shift in the law:
  “Before CJC, the pendulum had swung way over against parents … and now, the pendulum has swung way to the side of protecting parental rights.” — Holly Draper (25:53)

• On the clear and convincing evidence standard:
  “Clear and convincing evidence to overcome take away constitutional rights from parents. …where do we land in the end, to be determined, I guess we’ll have to see.” — Holly Draper (26:34)

Timestamps for Key Segments

• 00:35–13:35:
  Breakdown of all major statutory revisions to non-parent standing, including exclusive care language, abolition of stepparent statute, foster/kinship rules, and consanguinity expansion.

• 13:35–16:00:
  Explanation of the new affidavit requirement for all non-parent custody petitions; strategic tips for implementation.

• 16:00–26:34:
  Codification of fit parent presumption, clear and convincing standard for original and modification suits, practical guidance for drafting and defending against future non-parent suits, open questions, and the potential future of this area of law.

Conclusion

This legislative overhaul marks a decisive shift in Texas custody law, solidifying constitutional protections for parents and setting high evidentiary hurdles for non-parent litigants. Holly Draper encourages listeners to remain vigilant as these changes take effect and develop through appellate litigation, promising future updates as case law clarifies the new statutes.