Lifetime Protective Orders in Family Law Cases: Texas Supreme Court Hears Arguments
The Texas Supreme Court heard oral arguments today in a case that highlights the precarious balance between protecting children and preserving parental rights. The case, Stary v. Ethridge (No. 23-0067), challenges the constitutionality of lifetime protective orders issued under a preponderance of evidence standard in family law cases.
Listen: In-Depth Analysis of Stary v. Ethridge and Permanent Protective Orders
Background of Stary v. Ethridge
Christine Stary and Brady Ethridge divorced in 2018, initially maintaining an amicable shared custody agreement. However, their situation changed dramatically following an incident at Stary’s home on March 5, 2020, which led to a police investigation an initial allegations of injury to a child, a third-degree felony offense.
In response, Ethridge quickly sought legal intervention, filing for a protective order while the criminal investigation was still ongoing.
A search of Harris County records reveals no evidence of a conviction, arrest record, or indictment related to these allegations.
This suggests the criminal case did not result in a conviction and was likely expunged from Stary’s record. (At this point, not even a book-in photo or jail record can be found.) Despite this apparent lack of criminal prosecution, the civil protective order proceedings moved forward rapidly through the fall of 2020, with multiple court dates in September, October, and November, ultimately culminating in the December 7, 2020 decision that would bar Stary from contacting her children for life.
This lifelong or permanent protective order, without a criminal conviction and without any proceedings to terminate Stary’s parental rights, has become the subject of an ongoing legal battle that will shape how relief is sought and granted in family courts across Texas.
Termination of Parental Rights Was Not Sought
At the outset, it’s important to clarify, parental rights can be terminated in a constitutionally-sound manner. However, in Stary, termination was not sought in this case. Instead, a permanent protective order was granted.
The protective order proceedings against Stary highlight significant procedural differences from parental termination cases. When Ethridge initially sought the protective order in March 2020, the application for protective order would have followed standard Texas Family Code procedures, which typically focus on immediate safety concerns and temporary relief. Notably, the standard application forms and citations for protective orders do not explicitly warn respondents that they could permanently lose access to their children for life.
| Legal Process | Termination of Parental Rights | Permanent Protective Order |
|---|---|---|
| Legal Basis | Texas Family Code § 161.001 | Texas Family Code § 85.025(a)(1) |
| Standard of Proof | Clear and convincing evidence (A firm conviction or belief, much higher than preponderance) | Preponderance of evidence (More than 50%) |
| Notice Requirements | Specific notice of intent to terminate with explicit warning that rights could be lost permanently. | Basic notice of protective order hearing with no explicit warning about possibility of lifetime ban. |
| Right to Counsel | Mandatory appointment of counsel for indigent parents. | No automatic right to appointed counsel. |
| Duration | Permanent and irreversible. | Theoretically modifiable, but extremely difficult to modify. |
The Notice Disparity
In termination cases, parents receive clear notice that their parental rights are at stake – for life. They must be explicitly warned about potential consequences and their right to counsel. The heightened “clear and convincing” evidence standard reflects the gravity of permanently severing the parent-child relationship.
However, in Stary’s case, what began as a presumably temporary protective order evolved into a lifetime ban on parent-child contact without the same level of procedural safeguards. The process did not require:
- Explicit warning that lifetime severance of contact was possible
- Notice that the effect could be similar to termination
- The heightened evidentiary standard used in termination cases
- Mandatory appointment of counsel
Constitutional Implications
This disparity between protective order and termination procedures raises fundamental due process questions:
Notice
- Whether standard protective order notices adequately warn respondents of potential lifetime consequences
- If current notice procedures satisfy constitutional due process requirements
- Whether parents should receive termination-level warnings when lifetime orders are possible
Standard of Proof Concerns
- Whether using the lower preponderance standard for lifetime orders is constitutionally adequate
- If the practical effect of lifetime orders requires termination-level protections
- How courts should balance immediate safety needs with long-term parental rights
Procedural Protections
- Whether mandatory counsel should be required for lifetime protective orders
- If current procedures adequately protect fundamental parental rights
- Whether additional safeguards are needed when lifetime orders are contemplated
The “De Facto Termination” Argument
Stary’s appeal argues that lifetime protective orders effectively function as termination orders without providing equivalent procedural protections. This argument suggests that when the state seeks to permanently sever parent-child contact through any legal mechanism, it should be required to:
- Provide clear advance notice of possible permanent severance
- Apply the clear and convincing evidence standard
- Ensure adequate procedural protections
- Consider less restrictive alternatives
Legal Framework
The case centers on Texas Family Code Section 85.025(a-1), which permits courts to issue lifetime protective orders when a felony involving family violence is alleged – even without a criminal conviction. This provision has sparked considerable debate about due process rights and the appropriate standard of proof required for such consequential orders. This was enacted in 2011 as part of House Bill 1003 during the 82nd Texas Legislature. Prior to this amendment, protective orders were generally limited to two-year terms, with courts requiring petitioners to prove a continuing need for protection to obtain extensions.
Legislative Intent for Family Code Section 85.025
The provision was introduced amid growing concerns about repeat family violence offenders and the burden on victims who had to repeatedly return to court to extend protective orders. The legislative record indicates the primary goals were to:
- Focus on cases involving documented patterns of violence
- Address situations with clear evidence of serious abuse
- Reduce court appearances for victims
Debate and Opposition
However, even during the bill’s initial consideration, concerns were raised about:
- The constitutional implications of lifetime orders
- The lower evidentiary standard required
- The potential impact on parental rights
- The lack of clear mechanisms for modification or review
Critics argued that the law needed more safeguards to protect due process rights, particularly in cases involving parent-child relationships. Some lawmakers pushed for amendments that would have:
- Required a higher standard of proof
- Mandated periodic review of lifetime orders
- Created clearer modification procedures
- Required consideration of less restrictive alternatives
The Evidence Against Stary
- Brady Ethridge’s testimony, which was primarily based on what the children had told him rather than direct observation
- Medical records documenting the children’s injuries
- Stary’s testimony, in which she denied the abuse allegations and offered alternative explanations for the injuries, such as accidental falls and rough housing
- Character witness testimony on Stary’s behalf, though the court placed limitations on this evidence
An amicus attorney was appointed to represent the children’s interests, and the court ordered psychological evaluations for Stary, demonstrating the comprehensive nature of the proceedings.
The Constitutional Question
The core issue before the Supreme Court is whether using the “preponderance of the evidence” standard for lifetime protective orders satisfies constitutional due process requirements. This standard requires only that allegations be more likely true than not – a markedly lower threshold than the “clear and convincing evidence” standard required for terminating parental rights.
The Decision for the Texas Supreme Court
The Texas Supreme Court’s decision could provide crucial guidance on these issues and potentially reshape how Texas courts approach protective orders that effectively sever parent-child relationships. The outcome of this case could have far-reaching implications for family law practice in Texas and might spark broader discussions about necessary reforms to ensure both child safety and parental rights are adequately protected.
