St. Mary's Law Journal


Texas Family Code section 156.101 is unconstitutional. In In re V.L.K, the Texas Supreme Court held that the Texas Legislature removed the injurious retention element from section 156.101 and no longer required a finding that the natural parent be injurious to the welfare of the child. The Texas Supreme Court’s ruling is contradictory to the United States Supreme Court’s ruling in Troxel v. Granville. In Troxel, the Supreme Court struck down a state statute that effectively permitted any third party to file a motion to challenge custody. Under Texas law, any affected party, not limited to parties named in the original order, has standing to file a motion to modify. Like the statute in Troxel, this statute is likely to fail a constitutional challenge because it is overly broad and allows the trial court to change managing conservator status even without a finding of injurious retention. As the court stated in Troxel, so long as a parent adequately cares for his or her children (i.e., is fit), the State should not further question the ability of that parent to make the best decisions concerning the rearing of their children. Texas judges should not have the ability to infringe on the fundamental rights of parents to make child rearing decisions simply because they believe a third party is “better.” Currently, a nonparent can take the managing conservatorship role away from the natural parent without any showing that the natural parent is in any way unfit or that retention by the natural parent would be detrimental to the child. This infringes on a fundamental right and is unconstitutional. Therefore, the Texas Legislature should amend Texas Family Code section 156.101 and re-establish the injurious retention test.


St. Mary's University School of Law