What legal standards do courts use to balance parents' rights against the government when it comes to raising their children?

Plain-English summary

The chair of the Texas House Committee on Corrections asked the AG a broad question: what standards do courts use when they have to weigh the government's interests against a parent's fundamental right to raise a child free from state interference? Rather than answer for one narrow scenario, the AG wrote a survey of the constitutional ground rules.

The starting point is the Due Process Clause of the Fourteenth Amendment, which the U.S. Supreme Court has long read to protect parental rights as a fundamental liberty interest. The AG grouped those rights into several lines of cases. Parents have the right to make decisions about the care, custody, and control of their children (the Court struck down an open-ended grandparent-visitation statute on that ground in Troxel v. Granville). They have the right to direct their children's upbringing and education (the Court overturned a law forcing children into public school in Pierce v. Soc'y of Sisters and a ban on teaching foreign languages in Meyer v. Nebraska). They have the right to make medical decisions for their children (Parham v. J.R.). And in conjunction with the First Amendment, they have the right to guide their children's religious upbringing (Wisconsin v. Yoder, the Amish compulsory-schooling case).

When a state statute infringes one of these fundamental rights, the AG explained, courts generally apply strict scrutiny: the government must show the restriction furthers a compelling interest and is narrowly tailored to achieve it. The AG noted the plurality in Troxel did not spell out a standard of review, but both federal and Texas courts apply strict scrutiny to laws infringing fundamental due-process rights, and Texas courts have done so for statutes touching a parent's right over the care and custody of children. The AG then flagged additional, context-specific standards in custody cases. When courts resolve conservatorship and possession disputes (including abuse and neglect cases), Family Code section 153.002 makes the best interest of the child the primary consideration, and the Texas Supreme Court in Holley v. Adams gave a non-exhaustive list of best-interest factors. Before a court can permanently terminate parental rights, due process requires clear and convincing evidence (Santosky v. Kramer), a standard the Legislature built into the Family Code. And throughout, courts presume that fit parents act in their children's best interest and will not substitute a judge's view for a fit parent's simply because a judge thinks a "better" decision is possible. The AG stressed that parental rights, while fundamental and heavily protected, are not absolute.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Legislators and policymakers: At the time of the opinion, the AG explained that a statute infringing a fundamental parental right would generally face strict scrutiny, requiring a compelling interest and narrow tailoring, a useful frame for evaluating proposed legislation touching parental rights.

Parents: The opinion described the constitutional protections the courts recognized for decisions about their children's care, custody, education, medical treatment, and religious upbringing, and the presumption that fit parents act in their children's best interest.

Family-law practitioners and courts: The opinion gathered the governing standards, strict scrutiny for infringements on fundamental rights, the best-interest standard and Holley factors for custody disputes, and the clear-and-convincing-evidence requirement for termination, as they stood in 2019.

Common questions

What standard do courts use when a law interferes with parental rights?
The AG explained that courts generally apply strict scrutiny to a state statute that infringes a fundamental liberty right under the Due Process Clause, meaning the law must serve a compelling state interest and be narrowly tailored.

What parental rights does the Constitution protect?
The AG identified the rights to make decisions about the care, custody, and control of children, to direct their upbringing and education, to make medical decisions for them, and, with the First Amendment, to guide their religious upbringing.

How do courts decide custody disputes between parents?
The AG noted that Family Code section 153.002 makes the best interest of the child the primary consideration, and the Texas Supreme Court in Holley v. Adams listed non-exhaustive factors courts weigh, such as the child's needs, the parties' abilities, and the stability of the home.

How hard is it to terminate parental rights?
The AG explained that due process requires clear and convincing evidence before a court can permanently and irrevocably terminate parental rights, a standard the Legislature incorporated into the Family Code.

Are parental rights absolute?
No. The AG noted that parental rights are fundamental and given significant protection but are not plenary; the State retains some control where a child's physical or mental health is jeopardized.

Background and statutory framework

The AG grounded fundamental parental rights in the Due Process Clause of the Fourteenth Amendment (U.S. Const. amend. XIV, § 1), citing U.S. Supreme Court decisions recognizing parents' liberty interest in their children (Pierce v. Soc'y of Sisters; Troxel v. Granville; Meyer v. Nebraska; Prince v. Massachusetts) and Texas decisions to the same effect (In re Pensom; Wiley v. Spratlan). The opinion organized the rights into the care/custody/control decisions (Troxel), the right to direct upbringing and education (Pierce; Meyer; Parker v. Hurley), the right to make medical decisions (Parham v. J.R.), and the right, with the First Amendment, to guide religious upbringing (Wisconsin v. Yoder).

On the standard of review, the AG explained that the Due Process Clause forbids infringing fundamental liberty interests unless narrowly tailored to a compelling state interest (Reno v. Flores; Washington v. Glucksberg), that strict scrutiny requires the government to prove a compelling interest and narrow tailoring (Reed v. Town of Gilbert), and that Texas courts and the AG's office apply strict scrutiny to statutes infringing a parent's right over the care and custody of children (Tex. Att'y Gen. Op. No. GA-0260 (2004); In re Pensom). The AG noted the Troxel plurality did not articulate a standard of review (referencing Justice Thomas's concurrence and a Texas dissent in In the Interest of H.S.). For custody contexts, the AG identified the best-interest standard (Tex. Fam. Code § 153.002) and the Holley v. Adams factors, the clear-and-convincing-evidence requirement for termination (Santosky v. Kramer; In Interest of G.M.; Tex. Fam. Code §§ 101.007, 161.001(b), 161.003(a)(2), 161.206(a)-(a-1)), and the presumption that fit parents act in their children's best interest (Troxel; Parham; In re Derzapf; In re Scheller). The AG cautioned that parental rights, though fundamental, are not absolute (In the Interest of H.S.; Parham).

Citations

Constitutional and statutory provisions:

• U.S. Const. amend. XIV, § 1
• Tex. Fam. Code § 101.007; § 153.002; § 161.001(b); § 161.003(a)(2); § 161.206(a)-(a-1)

Cases (U.S. Supreme Court):

• Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925)
• Troxel v. Granville, 530 U.S. 57, 65 (2000)
• Reno v. Flores, 507 U.S. 292, 301-02 (1993)
• Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
• Prince v. Massachusetts, 321 U.S. 158, 166 (1944)
• Parham v. J.R., 442 U.S. 584, 602 (1979)
• Wisconsin v. Yoder, 406 U.S. 205, 232 (1972)
• Reed v. Town of Gilbert, 135 S. Ct. 2218, 2231 (2015)
• Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
• Santosky v. Kramer, 455 U.S. 745, 747-48 (1982)

Cases (federal court of appeals and Texas courts):

• Parker v. Hurley, 514 F.3d 87, 101 (1st Cir. 2008)
• In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio 2003, no pet.)
• Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)
• In the Interest of H.S., 550 S.W.3d 151, 163 (Tex. 2018)
• Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976)
• In Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980)
• In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007)
• In re Scheller, 325 S.W.3d 640, 642 (Tex. 2010)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0260 (2004)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0241
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0241.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 22, 2019

The Honorable James White Opinion No. KP-0241
Chair, Committee on Corrections
Texas House of Representatives Re: Standards courts apply when balancing the
Post Office Box 2910 rights of the State against the fundamental rights
Austin, Texas 78768-2910 of parents to raise their children free from
government intrusion (RQ-0258-KP)

Dear Representative White:

    You seek an opinion regarding the "elements, factors, or standards" courts consider or

apply "when balancing the rights of the state against the fundamental rights of parents to raise their
child free from government intrusion." [1] To address the standards courts apply in balancing those
rights, it is first necessary to understand the basis for fundamental parental rights and the scope of
those rights.

    I. The Due Process Clause of the Fourteenth Amendment protects fundamental
    parental rights.

    Courts have long held that "the natural right existing between parents and their children is

of constitutional dimensions." In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio
2003, no pet.); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). As the U.S. Supreme Court
recognized almost a century ago, "[t]he child is not the mere creature of the state; those who nurture
him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him
for additional obligations." Pierce v. Soc'y of Sisters, 268 U.S. 510, 535 (1925). Consistent with
this recognition, the Court has held that the interest parents possess with regard to their children is
a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment.
Troxel v. Granville, 530 U.S. 57, 65 (2000).

    The Due Process Clause provides that no State shall "deprive any person of life, liberty, or

property, without due process of law." U.S. CONST. amend. XIV, § 1. In addition to guaranteeing
fair process, the Court has held that this Clause includes a substantive component that forbids the
government from infringing upon "certain 'fundamental' liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest." Reno v. Flores, 507 U.S. 292, 301-02 (1993). The Court has long held that among the
fundamental rights protected by the Due Process Clause are certain fundamental parental rights.
Troxel, 530 U.S. at 65; Pierce, 268 U.S. at 534-35; Meyer v. Nebraska, 262 U.S. 390, 399 (1923)
("liberty" includes the right of the individual to "establish a home and bring up children"). Over
time, the Court has identified several contexts in which these fundamental parental rights apply.

           a. Due Process protects the right of parents to make decisions regarding the
              care, custody, and control of their children.

    The Due Process Clause "protects the fundamental right of parents to make decisions

concerning the care, custody, and control of their children." Troxel, 530 U.S. at 66. In Troxel, the
Court held unconstitutional a state statute authorizing a court to grant visitation rights to any
person, even over the objection of a fit parent. Id. at 72-73. Noting that the statute placed the
best-interest-of-the-child determination solely in the hands of the judge, the Court concluded that
it unconstitutionally infringed on the right of parents to make decisions about the care, custody,
and control of their children. Id.; see also Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ("It
is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder.").

           b. Due Process protects the right of parents to direct the upbringing and
              education of their children.

    In conjunction with the right to make decisions about the care, custody, and control of their

children, the Due Process Clause guarantees the right of "parents and guardians to direct the
upbringing and education of children under their control." Pierce, 268 U.S. at 534-35. In Pierce,
the Court overturned a state law requiring parents to send their children to public school,
emphasizing that the "fundamental theory of liberty upon which all governments in this Union
repose excludes any general power of the state to standardize its children by forcing them to accept
instruction from public teachers only." Id. at 535; see also Meyer, 262 U.S. at 403 (overturning a
state law that prohibited teaching in any language other than English). Lower courts expanding
on this right have explained that Meyer and Pierce "evince the principle that the state cannot
prevent parents from choosing a specific educational program," whether it be religious instruction
at a private school or instruction in a foreign language. Parker v. Hurley, 514 F.3d 87, 101 (1st
Cir. 2008); see also Meyer, 262 U.S. at 403; Pierce, 268 U.S. at 534-35.

           c. Due Process protects the right of parents to make medical decisions on
              behalf of their children.

    The Due Process Clause protects the right of parents to make medical treatment decisions

on behalf of their children. See Parham v. J.R., 442 U.S. 584, 602 (1979). In Parham, the Court
addressed voluntary commitment procedures for minor children, which allowed a parent to apply
for commitment over the objection of the child. Id. at 587. Rejecting the idea that a formal,
adversarial, preadmission hearing was necessary to protect the minor children's rights, the Court
emphasized that its "jurisprudence historically has reflected Western civilization concepts of the
family as a unit with broad parental authority over minor children." Id. at 602. "The law's concept
of the family rests on a presumption that parents possess what a child lacks in maturity, experience,
and capacity for judgment required for making difficult decisions." Id. Thus, the Court concluded
that parents can and must make judgments about children's need for medical care and treatment.
Id. at 603.

           d. Due Process, coupled with the First Amendment, protects the right of
              parents to guide the religious training and education of their children.

    In conjunction with the First Amendment, the Due Process Clause protects the right of

parents "to guide the religious future and education of their children." Wisconsin v. Yoder, 406
U.S. 205, 232 (1972). Wisconsin v. Yoder addressed a challenge to a compulsory education law,
which required school attendance until age 16, by Amish parents who objected to formal education
beyond the eighth grade. Id. at 207-11. Recognizing that the parents' objections were firmly
grounded in their religious beliefs, and that compulsory high school education could significantly
alter the religious future of their children, the Court held that the First and Fourteenth Amendments
"prevent the State from compelling respondents to cause their children to attend formal high school
to age 16." Id. at 234. In doing so, the Court emphasized that the "primary role of the parents in
the upbringing of their children is now established beyond debate as an enduring American
tradition." Id. at 232.

    II. As a general matter, Courts apply strict scrutiny to review state statutes that
    infringe upon fundamental parental rights.

    You ask generally about the standards courts will apply in adjudicating cases in which

parental rights are at issue, but you do not target a specific context in which those rights are
impacted. See Request Letter at 1. What elements, factors, or standards a court will use in
balancing state interests against the fundamental rights of parents will depend on the context in
which the balancing of interests arises. [2] However, we can provide guidance on the general
standard courts use to balance these interests and then discuss certain contexts where courts may
apply additional standards.

    The U.S. Supreme Court's 2000 opinion Troxel v. Granville contains the most recent

expansive discussion of fundamental parental rights. 530 U.S. at 63. In Troxel, the Court held
unconstitutional a Washington statute that allowed any person to petition for visitation rights at
any time if it was in the best interests of the children. Id. Overturning the decision to grant a
grandparent access to a child over the objection of the parent, the Court emphasized that if a parent
"adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State
to inject itself into the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent's children." Id. at 68-69. But the
plurality opinion in Troxel did not articulate a standard of review for addressing fundamental
parental rights. See id. at 80 (Thomas, J., concurring) (noting that the plurality and other
concurring opinions do not state the appropriate standard of review and suggesting strict scrutiny
should apply); In the Interest of H.S., 550 S.W.3d at 175 (Blacklock, J., dissenting) ("[The U.S.]
Supreme Court ... has not articulated a standard of review by which to judge the constitutionality
of infringements upon parents' rights.").

    Nevertheless, both federal and state courts generally apply strict scrutiny if a state statute

infringes upon a fundamental liberty right protected under the Due Process Clause of the
Fourteenth Amendment. See, e.g., Reno, 507 U.S. at 302 (explaining that the Due Process Clause
"forbids the government to infringe certain 'fundamental' liberty interests at all, no matter what
process is provided, unless the infringement is narrowly tailored to serve a compelling state
interest"); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976) (recognizing that because the case
involved the right of the parent to surround the child with proper influences, the case was "strictly
scrutinized"). "Strict scrutiny" requires the "Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest." Reed v. Town of Gilbert, 135
S. Ct. 2218, 2231 (2015); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(recognizing that the Due Process Clause forbids the government from infringing upon a
fundamental liberty interest "unless the infringement is narrowly tailored to serve a compelling
state interest").

    Consistent with this applicable standard of review, Texas courts and this office recognize

that "state statutes that infringe upon a parent's right to control the care and custody of his or her
children are subject to strict scrutiny." Tex. Att'y Gen. Op. No. GA-0260 (2004) at 5; see also
In re Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio 2003, no pet.). In re Pensom
addressed the constitutionality of Texas's grandparent visitation statute in light of Troxel. 126
S.W.3d at 253-54. Recognizing that the statute implicated the fundamental liberty interest of
parents in the care, custody, and control of their children, the court underscored the appropriate
standard of review: "Because a fundamental right is implicated here, we apply strict scrutiny and
will uphold the statute if it is narrowly tailored to serve a compelling government interest." Id. at
254.

    III. Certain contexts regarding child custody determinations may warrant the
    application of additional standards.

    While strict scrutiny will apply in any instance when a state statute infringes upon a

fundamental parental right, in the context of making custody adjustments or determinations, courts
have adopted additional standards that they utilize when applicable.

           a. When a court resolves disputes concerning conservatorship and possession
              of a child, the court bases those decisions on the best interest of the child.

    While parents are presumed to act in the best interest of their children, in situations

involving divorce parents may have differing opinions regarding what is best for the children. In
addressing child custody disputes between parents or in instances of abuse and neglect of a child,
the Legislature has established the standard by which courts must resolve those disputes: "The best
interest of the child shall always be the primary consideration of the court in determining the issues
of conservatorship and possession of and access to the child." TEX. FAM. CODE § 153.002. The
Texas Supreme Court provided a non-exhaustive list of factors to consider in ascertaining the best
interest of the child, including:

            (A) the desires of the child;
            (B) the emotional and physical needs of the child now and in the future;
            (C) the emotional and physical danger to the child now and in the future;
            (D) the parental abilities of the individuals seeking custody;
            (E) the programs available to assist these individuals to promote the best interest
                of the child;
            (F) the plans for the child by these individuals or by the agency seeking custody;
            (G) the stability of the home or proposed placement;
            (H) the acts or omissions of the parent which may indicate that the existing parent-
                child relationship is not a proper one; and
            (I) any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 372 (footnotes omitted); see also Reno, 507 U.S. at 303-04 ("'The best
interests of the child' ... is a proper and feasible criterion for making the decision as to which of
two parents will be accorded custody.").

           b. Before permanently severing parental rights, the State must provide clear
              and convincing evidence that the termination is warranted.

    Both federal and Texas courts have held that the Due Process Clause requires a heightened

evidentiary standard before permanently terminating parental rights. "Before a State may sever
completely and irrevocably the rights of parents in their natural child, due process requires that the
State support its allegations [that support termination] by at least clear and convincing evidence."
Santosky v. Kramer, 455 U.S. 745, 747-48 (1982); see also In Interest of G.M., 596 S.W.2d 846,
847 (Tex. 1980) (requiring clear and convincing evidence standard of proof "in all proceedings for
involuntary termination of the parent-child relationship"). The Legislature defines "clear and
convincing evidence" as "the measure or degree of proof that will produce in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX.
FAM. CODE § 101.007. Consistent with the U.S. Supreme Court case law, the Legislature
incorporated the clear and convincing evidence standard into the Family Code procedures
addressing termination of the parent-child relationship. See, e.g., id. §§ 161.001(b), .003(a)(2),
.206(a)-(a-1).

           c. Courts presume that fit parents act in the best interests of their children.

    In evaluating parent-child relationships before making decisions about access to the child,

courts presume "that fit parents act in the best interests of their children" and refrain from imposing
their own judgments in lieu of a fit parent's decision regarding what is in the best interest of the
child. Troxel, 530 U.S. at 68. "The law's concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for judgment required for making
life's difficult decisions." Parham, 442 U.S. at 602. "More important, historically it has
recognized that natural bonds of affection lead parents to act in the best interests of their children."
Id. Due to this presumption, the State may not "infringe on the fundamental rights of parents to
make child rearing decisions simply because a state judge believes a 'better decision' could be
made." In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (quoting Troxel, 530 U.S. at 72-73). So
long as a parent is fit, "there will normally be no reason for the State to inject itself into the private
realm of the family to further question the ability of that parent to make the best decisions
concerning the rearing of that parent's children." Troxel, 530 U.S. at 68-69; see also In re Scheller,
325 S.W.3d 640, 642 (Tex. 2010).

    Parental rights issues arise in many different contexts, and diverse scenarios regularly occur

that require courts to evaluate those rights and balance them against the interests of the State in
new settings. While we do not attempt to anticipate every context a court will consider, or provide
an exhaustive list of the elements, factors, or standards that courts will apply in all settings, the
standards and presumptions discussed herein reveal how courts give fundamental parental rights
expansive protection under the Due Process Clause.

                                 SUMMARY

                 The Due Process Clause of the Fourteenth Amendment
         protects certain fundamental parental rights, including the right of
         parents to make decisions concerning the care, custody, and control
         of their children, to direct the upbringing and education of their
         children, the right to make medical decisions on behalf of their
         children, and, in conjunction with the First Amendment, to guide the
         religious future and education of their children.

                 Courts review governmental infringements on fundamental
         rights protected by the Due Process Clause under strict scrutiny,
         requiring that the statute serve a compelling state interest and be
         narrowly tailored to achieve that interest.

                 In addressing child custody disputes between parents or in
         instances of abuse and neglect of a child, the Legislature has
         established the standard by which courts must resolve those
         disputes. Pursuant to section 153.002 of the Family Code, the best
         interest of the child shall always be the primary consideration of the
         court in determining the issues of conservatorship and possession of
         and access to the child.

                 A court may not permanently and irrevocably terminate
         parental rights absent clear and convincing evidence of the
         allegations supporting the termination.

                  In evaluating parent-child relationships before making
         decisions about access to the child, courts presume that fit parents
         act in the best interests of their children and refrain from imposing
         their own judgments in lieu of a fit parent's decision regarding what
         is in the best interest of the child.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] Letter from Honorable James White, Chair, House Comm. on Corrections, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 27, 2018) ("Request Letter"), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs.

[2] As your question recognizes, the fundamental rights of parents regarding their children are not absolute. Request Letter at 1. "Parental rights are fundamental, but neither the Texas Family Code nor the Constitution treats them as plenary and unchecked." In the Interest of H.S., 550 S.W.3d 151, 163 (Tex. 2018). "[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham, 442 U.S. at 603. However, while not absolute, parental rights are still fundamental and accorded significant protections, as the standards discussed infra reveal.