You will find a lot of websites and articles online that discuss a “Children’s Bill of Rights” in the State of Texas. Some articles indicate that the children’s bill of rights for divorce or custody cases was created by the legislature—which is not true. Some articles talk about how it is often used by courts and included in custody or conservatorship orders—which is somewhat true. But, no one has the entire truth, so the Eggleston Law Firm, PC has taken it upon itself to set the record straight.
What is it all about and why does it matter?
If you’re involved in a divorce or custody case, you’ve likely heard the phrase “best interest of the child”. Best interest refers to keeping the needs of a child front and center during a court proceeding to create and encourage the best possible outcome for that child or children. Most well-meaning parents put the needs of their children first, but sometimes the high emotion and conflict in a divorce or custody proceeding can cloud what’s important.
The idea behind a children’s bill of rights is that it helps to protect parent-child relationships and makes the needs of kids a priority. The problem with every version of a children’s bill of rights in existence (as of this writing) is that the list is not actually a bill or rights of children… but a list of goals and limitations on parenting a child. So, a more appropriate name would be something like “Guidelines for Co-Parenting in Texas”.
Was it something created by the Legislature?
No, it was not created by the legislature. At some point in the past a lawyer wrote up a list of 31 bullet points and titled his document “Children’s Bill of Rights”. It gained a lot of recognition and began being put in place by many family court judges. You can even find the list of rights is even included on government websites, providing support for the belief they are the law. However, and despite many websites stating it is the law or a hard and fast rule, that simply is not true.
In the 1980s the Texas Legislature took a shot at passing a bill (found at https://capitol.texas.gov/tlodocs/81R/billtext/html/HB00188I.htm) to change the family code to include a children’s bill of rights. But the bill never passed and never became law. The closest thing to a real children’s bill of rights in the State of Texas or the Texas Family Code was put in place in 2011, and is found in Title 5, § 263.008 (found at https://statutes.capitol.texas.gov/Docs/FA/htm/FA.263.htm). That code section is entitled “Foster Children’s Bill of Rights”. That statute sets out a list of 16 items that children living in foster care are required to be informed of and provided in writing by the Department of Family and Protective Services.
So, what now?
The concept of a children’s bill or rights in divorce and custody cases is a good one. But it should set out specific rights of a child or children, not be a list of prohibitions on parenting. That is because Texas Family Code § 153.193 (found at https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm). states that a court may only impose restrictions or limitations on a parent’s right to possession and access of a child as are required to protect a child’s best interest. And Texas Family Code § 153.072 states a court may place limitations on a parent’s rights and duties with respect to their children, but only to the extent necessary to protect the best interests of the child or children (also found at https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm).
The court is supposed to do everything in its power to protect and promote the best interest of children by considering their health, safety and general well-being first when making decisions. But that power is put in check by those two provisions in Chapter 153 of the Texas Family Code.