Opinions in Family Law cases are on the rise in the Supreme Court of Texas. The state’s highest civil court issues about 90 opinions each term. Just five years ago, only 3% of the Court’s opinions were Family Law cases. That number has jumped in recent years; this term the Court is on pace for 10%.
So what’s the reason? An easy explanation is that there are just more cases than before. In 2018, the number of new Family Law cases reached an all time high, with 281,327 cases filed. That number dropped by about 3% in 2019. But as those handling appeals are all too familiar, it takes a while for a case to wind its way up the Supreme Court of Texas.
The cases that make their way up the high court usually involve predictable Family Law issues: parental rights, child support, division of community property, and mediated settlement agreements.
But with increasing regularity, these cases are making a splash on legal issues beyond just the traditional Family Law realm.
Take, for example, In re R.R.K., that staked out a place in the ongoing evolution on “finality” of judgments. There, the issue was whether the trial court’s memorandum order was “final” for purposes of appeal. That’s important because appellate deadlines begin to run if it was final.
The trial court included what lawyers call a “Mother Hubbard Clause” stating that “all relief not granted is denied.” This is often an indicator of finality. But the Supreme Court of Texas held that neither the trial court nor the parties intended the order to be final. And so, the mother was not too late to pursue appellate relief.
The case suggests another explanation for the increasing prevalence of Family Law on the Supreme Court of Texas’ docket. Family Law cases may offer the Court opportunities to clarify legal issues that trouble parties even outside the Family Law context (finality, for example).
Another case generating buzz is In re C.C. The issue is whether the fiancé of a deceased parent is entitled to partial custody of the child. (And just to unpack that, the fiancé is not the biological parent of the child). The case raises interesting issues about a non-parent’s ability to seek possession of a child, standing, and the fit-parent presumption.
The trial court granted the fiancé some rights. The child’s biological father appealed (by way of mandamus). The father argued that the trial court’s order violated a parent’s constitutional rights to determine how to care for his own child free from state interference. The Father’s brief argued:
“An opinion from this court is vitally important to ensure all fit parents in Texas have their constitutional rights protected in light of the generous standing awarded to non-parents by statutes not requiring a showing of significant impairment”
The case was one of the first handful of oral arguments by Zoom, which I looked at here. An opinion is expected this month, before the end of the Court’s term.
The case has attracted 10 amicus briefs groups including State Bar of Texas Family Law Section’s council, the newly-formed advocacy group Texas Association of Family Defense Attorneys, the conservative-leaning think tank the Texas Public Policy Foundation, and even the state of Texas itself.
With increasingly regularity, expect to see Family Law cases occupy a place on the Supreme Court of Texas’ docket. It’s a good reminder to find experienced Family Law attorneys at trial and appellate counsel on appeal.