Appellate Judge Believes Fit Parents Are Entitled to Equal Rights

According to Appellate Judge Puryear, in a concurring opinion in 2005 in Texas, the trial court judges have been applying the wrong standards and getting the intent of the joint custody portion of the family code wrong. He states that the joint managing conservator statute § 153.001, mandates "only minimal restriction on either parent’s possession or access," id. § 153.193. Puryear says that "the family code no longer favors…the superior rights" of one parent over the other, but that the judges still follow the old judge made law prior to the enactment of the newer family code with joint custody in it. He says that judges right now treat the possession plans in the family code like those are the standard that is applied and they use it regularly whenever they want to end a child custody conflict in their court.

Current family code chapter 153, governing conservatorship, possession, and access, no longer leaves that broad choice to the trial court; it has effectively chosen both parents as the children’s conservators by providing for joint managing conservatorship, Tex. Fam. Code Ann. § 153.005 (West 2002), articulating the policy that parents should share in the rights and duties of child rearing and have frequent, continuing contact with the child, id. § 153.001, and mandating only minimal restriction on either parent’s possession or access, id. § 153.193.

I think Judge Puryear is on the right track but still gets it all wrong. If the family code "favors the superior rights of one parent over the other," the code is in direct conflict with the state and federal constitutions. Parental rights are the natural private rights of individuals. They do NOT come from a marriage between parents and natural rights may NOT be "granted" by any state government. Where the federal constitution protects these private rights, there exists NO state authority of any kind that can nullify those guarantees. If state judges want to limit those rights in any form, they must first subject those rights to judicial adjudication where the private rights are balanced against the state's asserted policy interests under well-established standards of constitutional review. Where the rights are deemed fundamental are parental rights, federal law mandates that the state's policy be presumed unconstitutional when this adjudication begins and places the burden of proving constitutionality on the state, NOT the other party.

It is the state's policy NOT the other party's and the other party has NO legitimate authority to speak for the state or to assert state interests that the state hasn't publicly established. The protections are federal protections and only federal law can be applied to deny them. State law has zero authority to set federal minimum standards. State judges have a limited role in this process but when they set these standards, their reach is limited to that state, and the state judges are required by the federal constitution to apply federal law and federal law alone when establishing these minimum standards. Over the years the Court has stated this many different ways and many times over:

Federal law is enforceable in state courts not because Congress has determined that federal courts would otherwise be burdened or that state courts might provide a more convenient forum — although both might well be true — but because the Constitution and laws passed pursuant to it are as much laws in the States as laws passed by the state legislature.

...the state courts share responsibility for the application and enforcement of federal law.

The policy of the federal Act was to be considered the prevailing policy in every state which the state court could not refuse to enforce because of conceptions of impolicy or want of wisdom on the part of Congress in having called into play its lawful powers.

Municipal defenses—including an assertion of sovereign immunity—to a federal right of action are, of course, controlled by federal law.

Conduct by persons acting under color of state law which is wrongful under 42 U. S. C. § 1983 or § 1985(3) cannot be immunized by state law.

The federal law is law in the State as much as laws passed by the state legislature.

That reason, whether presented in terms of direct disagreement with substantive federal law or simple refusal to take cognizance of the federal cause of action, flatly violates the Supremacy Clause.

But as to persons that Congress subjected to liability, individual States may not exempt such persons from federal liability by relying on their own common-law heritage.

— US Supreme Court 1990

This case is instructive in family law and very useful in family law because of the way the way it was argued. The state appellate court held that questions about a federal statute—42 U. S. C. § 1983 ¹ in this case—raised in a state court were questions of state law NOT federal law.

"held, however, that under Hill a State's invocation of a state common law immunity from the use of its courts for suits against the state in those state courts" raised "purely a question of state law." " The Florida Supreme Court denied review."²

— US Supreme Court 1990

The US Supreme Court copied a plaintiff's argument from another case that the Court found to be controlling and it gets directly to the heart of what a state child custody judge's duty is under the law of the land of the state that includes federal law and federal constitutional provisions as if they were written directly into the state statutes. This is the argument that won in this case:

Hill argued that just as the State could be joined in an action for the violation of established state common-law or statutory duties, it was also subject to suit for violations of its nondiscretionary duty not to violate the Constitution.

— US Supreme Court 1990

The United States Supreme Court made it very clear that state court judges have a "duty not to violate the constitution. Where Chapter 153 of the Texas Family Code clearly and unambiguously requires a judge to reclassify natural fit parents who already hold as federal right all federal constitutional guarantees related to parenthood as "conservators" of one type or another. Chapter 153 goes on to say in Sec. 153.071. "COURT TO SPECIFY RIGHTS AND DUTIES OF PARENT APPOINTED A CONSERVATOR. If both parents are appointed as conservators of the child, the court shall specify the rights and duties of a parent..." Right here, Texas law requires a judge to "specify rights and duties."

Here's the thing, under the Separation of Powers Doctrine, as codified in the Texas Constitution Art. 2., Sec. 1, only a legislature has authority to "grant" or rights to any individual or to alter preexisting rights, and Art. 2 makes that a legislative power that can NOT be delegated to judges. Uder the federal Supremacy Clause, NO state legislature has any authority whatsoever to "grant" a right where that grant would in any manner diminish a federally protected right. State legislatures may enhance the protections afforded a federal right but the federal constitution and its constitutional guarantees set a minimum floor of protection below which NO state power may go, NOT even a child custody judge. This is a jurisdictional matter where there is NO basis in law for any state judge to claim otherwise and it would be their burden to "actually prove" its existence. This has profound implications regarding the permissible definition of the word "specify in Sec. 153.071"

The judicial power to "specify" rights under Art. 2., Tex. Const. must be limited to judicial holdings that follow an adjudication hearing that is conducted in compliance with federal law, and that power extends only to stating what the rights are under existing law and under existing precedent. There is NO judicial power that would permit a child custody judge to alter those existing rights without full confrontational adjudication of the private rights of the individual against the state's asserted political policy interests.

Texas judges outright lie about these things in family law cases and blatantly violate well-established federal rights. Texas judges, facing NO possibility of actual constitutional review over their administrative choices, grant themselves "absolute best interest authority":

When appointing both parents as joint conservators, the Family Code requires the trial court to "specify the rights and duties of each parent regarding the child's physical care, support, and education." Tex. Fam.Code Ann. § 153.134(b)(2) (Vernon Supp.2002). There is no limitation on the manner in which the court may assign those rights.... Therefore, the trial court retains broad discretion in crafting the rights and duties of each conservator in effectuating the best interest of the child.

— London v. London, 94, SW 3d 139, 150 (Tex. App. –Houston 2002)

As recently as in a 2002 case, the Court of Appeals of Texas, Houston (14th Dist.) asserts that it has full authority to assign rights in a custody case based on the judge's own racial biases. Judges say what they mean and mean what they say. So, when the 14th Dist says, "There is no limitation on the manner in which the court may assign those rights," they mean NO limitation. They mean NO constitutional rights for parents or children. They mean NO equal protection guarantees against racial bigotry by Texas judges.

However in a 1995 child custody case, the Texas Supreme Court had this to say about section 11.11—which is almost word for word the current wording of the Texas Family Code's temporary orders section—when a parent challenged the court's gag order as an impermissible prior restraint.

In a child custody modification proceeding the trial court has enjoined the father and mother "from communicating with any person about the other party in a derogatory manner either in person or by and through their attorneys using such terms as pedophile or other derogatory or defamatory words except when discussing the case with the counsellors or experts." The mother and her attorney petition this Court for mandamus directing the trial court to vacate this "gag order", arguing that it violates their state and federal constitutional rights of free speech, and that it was issued without the notice and hearing required by due process. We conditionally grant relief… While section 11.11 does give trial courts broad powers in family cases, it does not authorize them to invade constitutional guarantees.

— Texas Supreme Court, 1995.

In a child custody modification suit brought to the United States Supreme court way back in 1984, the Supreme Court held that the child custody judge and the child custody court were state actors whose best interest determinations are subject to constitutional review under established standards of review and the state's goal of serving the child's best interest is merely a "substantial" interest that is incapable of overcoming Fourteenth Amendment limitations subject to the compelling interest standard.

Given both of these cases, the Fourteenth District still claims that judges are subject to "no limitation." The Fourteenth District is in Houston, and the district is so large it has two appellate courts, the First District and the Fourteenth District courts of appeal. The justices of that court are NOT stupid. I've studied a great many cases from that court and they understand what they are doing. what they are doing here is direct defiance of the United States and the Texas Constitutions. They are openly waring with these constitutions because of their bigotry and hatred of any parent who makes marital choices they don't like and that hatred extends to the children of those parents.

The United States Supreme Court held the following about First Amendment rights in two cases, first:

It is clear therefore that First Amendment interests were either threatened or in fact being impaired at the time relief was sought. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury...

— US Supreme Court, 1976

Minors are entitled to a significant measure of First Amendment protection... No doubt a State possesses legitimate power to protect children from harm… but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them… The State must specifically identify an actual problem in need of solving… and the curtailment of free speech must be actually necessary to the solution…

— US Supreme Court, 2011

The United States Supreme Court holds that the loss of First Amendment freedoms, even for short periods of time, causes "irreparable injury," and the Court holds that minor children have personal rights protected by the First Amendment and the Court specifies minimum federal standards for limiting those rights of minor children.

So, who is right, the Fourteenth District of Texas or the Texas Supreme Court and the United States Supreme Court?

TEXAS LEGISLATURE INTENDED PARENTS TO HAVE EQUAL CUSTODY TIME

Judge Puryear goes on to say that the legislature intended for the judges "to award maximum time with each parent who is more than just a satisfactory parent." And that the current low standard of proof (preponderance of the evidence) in the trial courts and the high bar (abuse of discretion) to overcome in the appellate courts is allowing unconstitutional orders depriving fit parents of their full fundamental parental rights to take place and remain in place. He states:

Thus, even against the background of these monumental rights and explicit legislative directives to limit a parent’s time with a child only as necessary, see Tex. Fam. Code Ann. § 153.193 (West 2002), a trial court, if it were ever so slightly more persuaded in one direction than another, may make a decision profoundly affecting the rights and abilities of parents to raise their children, and unless we can say that no reasonable mind could have reached the court’s conclusion, we leave it undisturbed.

So, even though Judge Puryear wants to improve the standard, he still seems absolutly willing to forego the judicial duty to protect the rights of parents and child to speak with one another, to associate with one another, to worship together with one another as a family, and to share family privacy with one another. All of these are clearly personal rights of each individual parent and each individual child that do NOT come from marriage and that may NOT be subject to prior restraints justified solely by the Best Interests of the Child Policy that the US Supreme Court has declared to be merely substantial, while person-based prior restraints on speech in close family units demands compelling justification.

Judge Puryear states that, "a trial court... may make a decision profoundly affecting the rights and abilities of parents to raise their children, and ... we leave it undisturbed." How exactly does profoundly affecting fundamental rights under a merely "substantial" state interest NOT directly conflict with state and federal constitutional limitations?

Under federal law, prior restraints that are NOT content-based can be imposed under merely substantial state justification so long as other strong protections are afforded, but under the Texas Constitution, the bar is higher.

we have long held that "pre-speech sanctions" are presumptively unconstitutional.

...the injunction was beyond the power of the trial court to issue.

We have indicated that a prior restraint may be permissible "only when essential to the avoidance of an impending danger," … and only when it is the least restrictive means of preventing that harm...

Overbroad restrictions on speech are unconstitutional because of their potential to chill protected speech… In evaluating whether state action exceeds constitutional bounds governing freedom of speech, courts "must give the benefit of any doubt to protecting rather than stifling speech.

— Texas Supreme Court, 2014

In the preeminent free speech case in Texas, which the case above cites, the Texas Supreme Court appears to reiterate the judicial duty to protect rights that the US Supreme Court so clearly states.

An individual's rights under the state constitution do not end at the courthouse door; rather, the courthouse is properly the fortress of those rights.

The presumption in all cases under section eight is that pre-speech sanctions or "prior restraints" are unconstitutional...

...speech is properly restrained only when involving an actionable and immediate threat

— Texas Supreme Court, 1992

The father in this appellate case, Duck, was asking for a custody modification to 50/50 equal custody. He raised constitutional rights arguments. The appellate court, however, never heard his constitutional arguments because he did not meet the bar for change in circumstances at the trial court level. Therefore, the Court affirmed the trial court's decision and the violation of his and his child's constitutional rights went un-reviewed and ignored.

Duck challenges the court's failure to decrease child support and to grant further modification of the possession schedule, and the court's finding that it was not in the children's best interest to implement a 50-50 division of periods of possession. Because the evidence supports the district court's conclusion and because we cannot say that the court abused its discretion or otherwise committed error, we affirm the court's order.

Judge Puryear, while not the judge who wrote the majority opinion and therefore it is not controlling, states that Duck and other parents have not been able to receive justice on these rights issues because the standard that the appellate courts use block them from being able to be heard.

Puryear says that "Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion." In other words, the courts have employed an abuse of discretion standard of review. And this makes it very, very hard to be heard.

What the Texas courts have established is a complete abdication of their judicial duties when they administer child custody and child support policy for the legislature while claiming to be acting judicially. Never mind in Texas, the only way to establish judicial jurisdiction is through a concrete injury directly affecting one litigant and allegedly impermissibly injuring the other litigant where that injury can be cured by judicial action. The child can't be injured by divorce according to the US Supreme Court, so how exactly does a Texas Court gain jurisdiction to rule on the child's best interest? They can't. Nor can they rule on child support which the Texas Family Code once directly declared to be a "right of the child," and is cited by the US Supreme Court as a right of the child, unless they can prove in a case where the child is a litigant that a parent failed to meet federal minimum standards of childcare. There is also the matter of the Santosky Standard for them to overcome.

There are two things that Judge Puryear is getting at here. First, you must understand that there is a federal Parental Presumption Doctrine and a Texas Parental Presumption Doctrine. Texas Courts apply the Texas Parental Preference Doctrine to nullify the stronger federal parental Preference Doctrine in direct violation of the Supremacy Clause and the judicial oath. This is an outright fraud perpetrated by judges who know better and who are required by the Judicial Code of Conduct to know better. Second, there is the issue of de novo review vs abuse of discretion review. Here the father clearly raised questions of law regarding the constitutionality of the statutes and court actions. Here is what Google AI has to say on the subject:

TEXAS JUDGE SAYS U.S. SUPREME COURT OPINION REGARDING PROTECTION OF PARENTAL RIGHTS APPLIES TO FAMILY COURTS

Judges defaulting to the minimum standard of possession in the family code, Puryear states, "falls far short of showing proper respect to the legislature’s deliberate policy decisions commanding Texas courts to support and cultivate relationships between children and their parents so long as those parents are fit and to implement maximum parent-child contact to actively preserve family relationships often made all too fragile by parents’ inabilities to set aside personal animosity long enough to recognize their children’s need for their other parent."

Despite the United States Supreme Court’s determination to subject infringement upon such fundamental rights to strict scrutiny and of our own legislature’s mandate to preserve and foster parent-child relationships, Texas courts have developed a jurisprudence under which trial court decisions severely curtailing that relationship stand absent an abuse of discretion.

What Justice Puryear could have explained, as I did above, are some of the powerful reasons why Texas courts are violating their oaths. Texas courts are NOT permitted to develop a jurisprudence that conflicts with federal law. There is NO question about this and every judge in Texas swore an oath to be bound by that rule.

Dishonorable is far too nice of a word to apply to child abusing Texas judges who knowingly and intentionally irreparably injure children for their own financial best interests and to generate Title IV-D revenue for the state by forcing the arbitrarily chosen disfavored parent to labor to a state asserted "income-based" duty of childcare with NO possibility of constitutionally challenging the illegal forced labor imposed on them by Texas judges.

You see, when you start looking into the Thirteenth Amendment and federal statutes regarding forced labor, what appear to be just run of the mill civil rights violations by corrupt judges is actually a great deal more than that. These corrupt Texas judges are abusing the law and are abusing the legal process by producing predetermined judicial outcomes that always irreparably injure the child and the parents and that in almost every case, mine was an exception that I fought hard for, these judges are forcing parents to labor for the benefit of others, NOT the child, but the judge, the state of Texas, the attorneys, the Guardians ad Litem, etc. If the parent fails to work to the corrupt judge's satisfaction, the corrupt judge imposes abuses law and process to impose legal penalties under the claim that the disfavored parent is "intentionally underemployed." I am in the process of documenting how these abuses of law and process are key elements required for conviction under the federal forced labor statutes.

Maybe, the reason none of them will address the corruption directly is that they already know that what they are doing every day fits key elements identified under federal felony criminal statutes and that when this breaks, every last one of them will have to be replaced, and many are very likely to go to prison.

— Ron B Palmer

You can access the full concurring opinion regarding the Duck case here. We do not use the main opinion of this case as it never reached the merits of Duck's constitutional arguments.

When last we spoke with Judge Puryear, he had retired from the bench.

Because no government body is to violate your constitutional rights without proper due process and procedure, you are in the right and you can prevail against the corruption, because the questions of law have been resolved for many decades and we can prove that the Texas Family Code is facially unconstitutional in practically every way it can be constitutionally challenged. What we discussed here is just the tip of the iceberg.

THE FAMILY COURTS CONTINUE TO MAKE UNCONSTITUTIONAL ORDERS SEVERAL TIMES A DAY EVERY DAY…WHAT CAN YOU DO?

There is a way to get this argument in front of your court, we have helped you out with this by completely laying out that argument for you in our declaratory judgment motion samples. This Judge's opinion helps you show your judge that the reasoning and argument in these motions are valid and solid. The reason you would have the the necessity of these would be if there is no controlling opinion for your court that requires your judge to protect your parental rights equally and protect you from unnecessary litigation. You would be asking your court to respond to these motions asking what rights your court believes you have and what protections your court will provide for these rights. This helps you to know what you will be required to litigate, what rights are at issue, and who has the burden of proof and what standard of proof the court intends to use. (These just name a few of the reasons and things that these declaratory judgment motions do.)

This post was substantially edited by Ron B Palmer on December 10, 2025.