September 1 is the usual starting date to new laws. The legislature has made changes to the code and this is series of posts that addresses some of the new changes.
First up, the code in TFC Sec. 156.106 now allows the Court to consider the death of parent as a material and substantial change to justify the appointment of a conservator and directs the Court to look at the prior restrictions on one parent in making this determination. Since the US Supreme Court’s ruling in Troxell it has been difficult for third parties to challenge the custodial rights of parents. In short Troxell states that fit parents get custody of a child when challenged by third parties. Troxell involved the death of a parent with grandparents intervening over the objection of the living parent. The U.S. Supreme Court ruled that a state could only permit the interference in a parent child relationship to prevent harm or potential harm to the child. Troxell upended much of the Texas Family Code when it was rendered in 1999.
This provision is an attempt to address situations where a custodial parent dies and a prior court has found the living parent to be a danger or has otherwise restricted that parent’s access. Traditionally evidence that occurs prior to the rendition of a prior order is barred by res judicata. This provision removes that restriction. This should make it easier for third parties like grandparents or step-parents to step in when the primary parent dies. This provision however, can not alter Troxell and I would not be surprised if this provision is challenged as unconstitutional under Troxell.