Going back to English Common Law, there was a doctrine called the “Tender Years” Doctrine. Through the 1970s, the Tender Years Doctrine was a valid legal principle in many states, including Texas. Under the Tender Years Doctrine, mothers, not fathers, were the preferred caregivers for young children, absent extreme circumstances and allegations against the mother. By the 1980’s, the preferred family dynamic changed, and Texas and other states explicitly rejected the Tender Years Doctrine. But, what happens if a parent dies, and a Grandparent or someone else with substantial contact with a child swoops in and tries to get possession of that child?

           In Troxel v. Granville, the United States Supreme Court denied standing to the paternal grandparent’s petition for possession and access of the children, filed following the death of the children’s father. “Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000)”. In that case, the grandparents failed to set forth any evidence that the surviving parent was an unfit parent.The Court held that any ruling that curtails a presumptively fit parent’s rights regarding their children’s upbringing is unconstitutional as a violation of that parent’s due process right to care, custody, and control of their children. The Court further stated, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents,” and that this due process right is “perhaps the oldest of the foundational liberty interests recognized by this Court.”

           Here in Texas, we had the case of “In re C.J.C., 603 S.W.3d 804 (Tex. 2020)”. The Texas Supreme Court, citing Troxel v Granville, denied standing to the maternal grandparent’s petition and the mother’s boyfriend’s petition for possession of and access to the child filed following the death of the child’s mother. The Grandparents and the boyfriend failed to set forth any evidence that the surviving parent was an unfit parent. In any proceeding in which a non-parent seeks conservatorship or access to a child, Texas Courts must presume it is in the best interest of the child to make a surviving fit parent the sole managing conservator of the child. For a non-parent to overcome this presumption, they must demonstrate, by a preponderance of the evidence, that awarding the non-parent possession and access would not be in the child’s best interests and that the surviving parent is unfit to parent the child. Demonstrating the surviving parent is an unfit parent requires the non-parent to show that the surviving parent’s appointment as sole managing conservator would significantly impair the child’s physical and emotional development.

           As both cases show, Courts in Texas favor a parent over a non-parent as a conservator absent a finding that that parent is unfit.