SMU Law Review


To protect parental rights, Texas law presumes that a child’s parent or parents are in the position to make decisions regarding the best interest of their child. However, Texas courts favor granting nonparent visitation rights, even over parents’ objections, if there is sufficient evidence presented by the nonparent to overcome the presumption. Although Texas law is well-established when considering sufficient evidence to overcome the presumption in nonparent child custody cases, courts are inconsistent about the standards and tests involved in nonparent child visitation cases. There are differences between child custody disputes and visitation disputes, such as the level of parental intrusion and the duties required of the nonparent. Thus, Texas courts should consider certain factors when evaluating a nonparent’s evidence for court-ordered visitation, which differs from the evidence necessary in child custody disputes.

This Comment seeks to explore the gaps in Texas law regarding nonparent visitation and resolve, through a factor test, what qualifies as sufficient evidence to overcome the parental presumption in visitation cases. It does so by proposing the same standard of evidence in visitation and child custody disputes to safeguard the fundamental right of parental autonomy. Further, this Comment analyzes the specific factors Texas should consider in creating a factor test that other state legislatures and supreme courts deem relevant in visitation disputes. Implementing a factor test increases the predictability of visitation outcomes, allowing litigants to understand the evidence courts will consider, while still providing flexibility for the courts to analyze each situation involving a nonparent and child on a case-by-case basis.

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