Jaclyn Roberson of Roberson Duran Family Law in San Antonio was quoted in a recent Newsweek article entitled, “Woman Refusing to Give Sister Her 7-Year-Old Kid Back Praised: ‘Not Ready.’
The article featured a difficult situation where a woman cared for her niece since the mother left the child on her doorstep five years ago. The mother, who struggles with her mental health, has returned and wants to regain custody of her daughter. The aunt wanted to know if she was wrong for not wanting to return the child to her mother.
Whether she’s wrong is hardly the issue here. She’s not wrong for wanting to provide a safe environment for a child. The real question here is how can she do so legally. From a legal standpoint, you always have to look at your jurisdiction. Here in Texas, parents are presumed to be fit unless a court finds otherwise. In 2020, the Texas Supreme Court recognized in In Re C.J.C. that it is in the best interest of a child to be raised by their parents, thus ruling that a fit parent has the constitutional right to decide what is in the best interest of their child. This ruling is guided by the landmark United States Supreme Court decision in Troxel v. Granville, which held that parents have the constitutional right to make decisions concerning the care, custody and control of their children.
Newsweek quoted me as saying, “Even if you’ve had custody of a child for five years, you’re going up against the child’s parents. You would need to be able to prove that the mother is not fit to raise her child. If you go in front of a judge who believes in second chances and redemption, you may have a hard time.” While I stand by that position, and have seen this scenario play out in court multiple times, I do recognize that the fit parent presumption is rebuttable, meaning that if a nonparent can prove to the Court that a parent is unfit, they can intimately win custody of the child.
For a judge to determine who should have custody of a child, they will often look to a third party to provide guidance. That can be an attorney tasked with investigating what’s in the best interest of a child. The court can also appoint a custody evaluator who conducts a study of the homes of each party vying for custody. These third parties can often do the work that a judge does not have the time or ability to do, which means going into homes, interviewing children, researching educational, counseling, and medical records, conducting background checks and interviewing friends and family who can give valuable insight into the child’s needs and their relationship with the parties seeking custody. A judge may also order testing of a parent if the parent’s fitness to raise a child is in question. Testing can include drug and alcohol testing, a substance abuse assessment, and psychological testing.
It’s impossible to predict what will happen in court, but if you find yourself in a similar situation, it might be well worth it to fight for custody of the child in your care, especially if you’ve been the child’s primary caregiver and believe you can prove the child’s parents are unfit.