Palmore Standard – Texas

(Last Updated On: January 9, 2019)

We have discussed the Palmore Standard elsewhere. This is a powerful but overlooked standard set by the United States Supreme Court in a family law case. The Texas Supreme Court has done much the same in Grigsby v. Coker, 904 SW 2d 619, 620, 621 (Tex: Supreme Court 1995), (While section 11.11 does give trial courts broad powers in family cases, it does not authorize them to invade constitutional guarantees.)

Grigsby came to the Court on a mandamus petition arising from a child custody modification proceeding incident to divorce between fit parents where Relator asserted First Amendment protections against a best interest of the child justification for prior restraints on speech. The Texas Supreme Court rejected the argument that the prior restraint “was not an unconstitutional prior restraint because it was issued in a family case,” implicitly holding that the family law trial court was a state actor acting under color of state law and consequently limited by the state and federal constitutions. Based on the Texas Supreme Court’s precedent in Davenport v. Garcia, 834 SW 2d 4 (Tex: Supreme Court 1992), the Court directed the trial court judge to withdraw the prior restraint order (gag order).

The Court has made similar holdings more recently, In re Scheller, 325 SW 3d 640 (Tex: Supreme Court 2010), (Despite considerable discretion vested in courts to issue temporary orders “for the safety and welfare of the child,” a court cannot act to infringe on a party’s constitutional rights.)

In this regard, the Texas Supreme Court without citing Palmore has shown itself to be in compliance with the holdings in Palmore.