Christine Lenore Stary v. Brady Neal Ethridge

Supreme Court of Texas
══════════
No. 23-0067
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Christine Lenore Stary,
Petitioner,

v.

Brady Neal Ethridge,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the First District of Texas
═══════════════════════════════════════

Argued October 29, 2024

JUSTICE BLAND delivered the opinion of the Court.

Domestic violence protective orders protect family members from
one of their own who turns abusive toward them. Such orders
accomplish this protection in part by limiting or prohibiting the
offender’s contact with affected family members. Given the interests
involved—protection of the vulnerable, interference in family
relationships, and hefty criminal consequences upon violation of the
order—these decisions must never be made lightly. Such orders should
be the least intrusive means to accomplish the measure of protection
needed.
Recognizing as much, the law requires a court that issues a
protective order lasting longer than two years to find felony-level
violence, serious bodily injury, or repeated violations of prior protective
orders. Unlike a criminal case, in which a factfinder must find the
required elements beyond a reasonable doubt, a protective order
application is heard as a civil proceeding, with the burden of proof
merely that the required elements “more likely than not” occurred.
In this case, the trial court prohibited all contact between a
mother and her children for the mother’s lifetime. She appealed,
contending that the order effectively terminates her parental rights to
her children without adequate procedural safeguards, particularly the
heightened evidentiary burden applicable in parental termination
proceedings. The court of appeals affirmed, holding that protective
orders leave some of a parent’s ancillary rights and obligations intact;
thus, prohibiting a parent’s contact with her child, even permanently,
requires no heightened procedural safeguards. We granted review.
We hold that constitutional due process requires clear and
convincing evidence to support a protective order prohibiting contact
between a parent and her children under the statute authorizing
protective orders of longer than two years. An order prohibiting contact
for such a lengthy duration profoundly interferes with a parent’s
fundamental right to exercise care, custody, and control of her children.
In that paramount sense, lengthy protective orders are similar to the
government’s termination of parental rights. Our Court has required a

2
heightened evidentiary burden as a matter of constitutional procedural
due process principles in such cases.
Accordingly, we reverse the court of appeals’ judgment and
remand this case to the trial court for further proceedings.
I
Petitioner Christine Stary and Respondent Brady Ethridge
divorced in 2018. They agreed to share custody of their three children.
In March 2020, police arrested Stary and charged her with felony
injury to a child, alleging that she repeatedly struck her child’s head
against a hardwood floor. The State dismissed the criminal case in
February 2025.
A week after Stary’s arrest, Ethridge applied for a civil protective
order, alleging that Stary had engaged in conduct constituting family
violence. Ethridge sought an order lasting longer than two years,
alleging that Stary had committed acts of felony family violence and had
caused serious bodily injury to her children. The trial court issued an ex
parte temporary order preventing Stary from communicating with or
going near her children while the application was pending.
The trial court heard the application in September 2020. Ethridge
testified to instances the children had recounted to him of Stary injuring
them, including the incident leading to her arrest. 1 Ethridge introduced

1 Ethridge did not witness the events he recounted to the trial court but

he repeated what the children had reported to him under a hearsay exception
in the Family Code. See Tex. Fam. Code § 84.006 (allowing hearsay statements
by children under twelve describing alleged family violence to be admitted in
protective order hearings to the same extent they can be admitted in suits
affecting the parent-child relationship).

3
medical records corroborating the child’s injuries from that incident. The
trial court also interviewed the children in chambers.
Stary called a defense witness who testified that Stary was a
gentle disciplinarian and had taught the witness’s daughters in school
without incident. Stary waived her Fifth Amendment right against self
incrimination and testified on her own behalf. She denied injuring the
children or committing family violence. She claimed, for example, that
a sibling fight led to the criminal incident and she merely had tried to
separate the children.
The trial court found that Stary had committed family violence
that would be a felony if charged. Based on this finding, the court
exercised its discretion to order protection in “permanent duration,”
lasting for Stary’s lifetime. 2 Among other restrictions, the order
prevents all contact between Stary and her children, to include speaking
or “communicating directly” with them. The order further prohibits her
from being within 100 yards of their presence or any location where they
are “known by [Stary] to be.”
Stary requested but did not receive findings of fact and
conclusions of law. In her motion for new trial, she argued in relevant
part that the “protective order is tantamount to a termination of
parental rights” and that the trial court “violated [her] fundamental
rights under the Constitution without sufficient due process.” On

2 See id. § 85.025(a-1) (authorizing courts to render protective orders for

a period “that exceeds two years” if it finds that an act involving felony family
violence was committed).

4
appeal, she urged that clear and convincing evidence should be
necessary to support a protective order exceeding two years.
The court of appeals affirmed, holding that a lifetime protective
order prohibiting a parent from contacting her children is not equivalent
to terminating her parental rights. 3 For this reason, in its view, due
process does not require clear and convincing evidence of the elements
supporting a protective order lasting more than two years. One justice
dissented, arguing that the order in this case effectively terminated
Stary’s parental rights by prohibiting contact with her children for the
entirety of her life. 4
II
The United States and Texas Constitutions “provide[] heightened
protection against government interference with certain fundamental
rights and liberty interests.” 5 One such fundamental right is that of
parents to make decisions concerning the care, custody, and control of
their children. 6 It is “cardinal” that this right reside first with parents,

3 695 S.W.3d 417, 427 (Tex. App.—Houston [1st Dist.] 2022).

4 Id. at 438 (Farris, J., dissenting).

5 In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (quoting Troxel v.
Granville, 530 U.S. 57, 65 (2000) plurality op.)).
6 In re C.J.C., 603 S.W.3d 804, 811–12 (Tex. 2020) (citing Troxel, 530

U.S. at 66). The parties agree, and our precedent confirms, that parents have
a fundamental right to raise their children. Debates regarding the precise
textual sources of that well-recognized right are not at issue here.

5
“whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.” 7
The Family Code authorizes protective orders to provide
expedited, temporary protection upon a finding of family violence. 8 Upon
a finding that family violence has occurred, a trial court may limit or
prohibit contact with affected family members for up to two years. 9
A trial court can extend a protective order beyond two years in
limited circumstances. To order such protection, a trial court must
additionally find that the person subject to the order: (1) “committed an
act constituting a felony offense involving family violence against the
applicant or a member of the applicant’s family or household, regardless
of whether the person has been charged with or convicted of the offense”;
(2) “caused serious bodily injury to the applicant or a member of the
applicant’s family or household”; or (3) committed family violence,

7 In re G.M., 596 S.W.2d 846, 846 (Tex. 1980) (quoting Stanley v. Illinois,

405 U.S. 645, 651 (1972)).
8 See Tex. Fam. Code § 81.001 (“A court shall render a protective order

as provided by Section 85.001(b) if the court finds that family violence has
occurred.”); id. §§ 84.001(a), .002(a) (requiring courts to “set a date and time
for the hearing . . . [not] later than the 14th day after the date the application
is filed” or “not later than 20 days” in counties with more than 2.5 million
people); id. § 85.025(a) (“Except as otherwise provided by this section, an order
under this subtitle is effective: (1) for the period stated in the order, not to
exceed two years; or (2) . . . until the second anniversary of the date the order
was issued.”).
9 Id. § 85.022(b)(2) (allowing courts to prohibit the person found to have

committed family violence from communicating in a threatening manner or, “if
the court finds good cause, in any manner with a person protected by an order
or a member of the family or household of a person protected by an order,
except through the party’s attorney or a person appointed by the court”).

6
having been subject to two or more earlier protective orders involving
the current applicant. 10
In this Court, Stary contends that the trial court violated her
constitutional right to due process by prohibiting all contact with her
children for her lifetime without clear and convincing evidence to
support its underlying findings. In her view, the order deprives her of
her fundamental right to make decisions concerning the care, custody,
and control of her children and thus is tantamount to termination of her
parental rights. She argues that the court of appeals’ interpretation
creates a statutory loophole effectively allowing termination of parental
rights without the heightened burden of proof due process requires.
Ethridge declined to appear before the court of appeals or this
Court. Amicus counsel appointed to defend the court of appeals’
judgment responds that protective orders of lengthy duration that
prohibit a parent’s contact with her children are not equivalent to
termination of the parent’s rights, even when they apply for a parent’s
lifetime. Amicus observes that such orders do not divest a parent of all
rights as a termination order does. Moreover, the Family Code
authorizes those subject to protective orders up to two opportunities to
“request[] that the court review the protective order and determine
whether there is a continuing need for the order.” 11 In contrast,
termination orders are permanent once final. 12

10 Id. § 85.025(a-1).

11 Id. § 85.025(b)–(b-2).

12 Termination orders “divest[] the parent and the child of all legal
rights and duties with respect to each other” except for inheritance.

7
A
We first decide whether the protective order at issue deprived
Stary of her fundamental right to make decisions concerning the care,
custody, and control of her children. We review questions raising
constitutional concerns de novo. 13
The parties agree that Stary “has identified a ‘liberty, property,
or other enumerated interest’ that is entitled to protection”—her
parental rights. 14 Thus, we examine whether the order deprives Stary
of that interest and, if so, whether the trial court failed to provide due
process in doing so. 15
The protective order bars Stary from any contact or presence in
her children’s lives for the rest of hers. In our Court’s descriptions of a

Id. § 161.206(b). The statutory circumstances permitting a petition to reinstate
parental rights are narrow. See id. § 161.302(a)–(b) (allowing for a petition for
the reinstatement of parental rights to be filed only if the termination suit was
filed by the Department of Family and Protective Services, at least two years
have passed, and the child has not been adopted or is not the subject of a
forthcoming adoption).
13 State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002).

14 State v. Loe, 692 S.W.3d 215, 229 (Tex. 2024) (quoting Tex. S. Univ.

v. Villarreal, 620 S.W.3d 899, 905 (Tex. 2021)); see In re R.J.G., 681 S.W.3d
370, 373 (Tex. 2023) (“Both this Court and the Supreme Court of the United
States have long recognized the fundamental right of parents to make
decisions concerning the care, custody, and control of their children. Thus,
Texas law rightly requires that, before infringing on a parent’s right to care for
and have custody of her child, the State . . . must demonstrate to a court that
governmental intrusion is warranted.”).
15 See Bexar Cnty. Sheriff’s Civ. Serv. Comm’n v. Davis, 802 S.W.2d 659,

661 (Tex. 1990) (explaining that due process analysis requires inquiry into
whether a party “was deprived of a protected interest and, if so, what process
was due to safeguard that interest”).

8
parent’s fundamental right, a parent’s communication and presence has
been a necessary aspect of the exercise of the right. Early delineations
of the right—to “establish a home and bring up children” and “enjoy a
natural family unit”—implicitly rely upon a parent’s presence or, at the
least, communication with her children. 16 The right’s modern
recitation—“to make decisions concerning the care, custody, and control
of [a parent’s] children”—considers that parents have a right to decide
who is present in their children’s lives, including themselves. 17
Concomitant with this positive right is the “high duty” of parents
“to recognize and prepare [their children] for additional obligations.” 18
Here, too, it is difficult to imagine that parents could carry out this duty
without any presence in their child’s life. Even the most rudimentary
duties like “to recognize symptoms of illness and to seek and follow
medical advice” cannot be accomplished if the parent is prohibited from
seeing or speaking with her children for a lengthy duration. 19
Parenthood, of course, is more than providing for a child’s basic
needs. It involves the “emotional attachments that derive from the
intimacy of daily association” and the role these play in parents’ duties

16 Univ. of Tex. Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 930 (Tex.

1995) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 572 (1972));
G.M., 596 S.W.2d at 847.
17 C.J.C., 603 S.W.3d at 811 (emphasis added) (quoting Troxel, 530 U.S.

at 66).
18 Id. (alteration in original) (quoting Parham v. J.R., 442 U.S. 584, 602

(1979)).
19 Miller ex rel. Miller v. HCA, Inc., 118 S.W.3d 758, 766 (Tex. 2003)

(quoting Parham, 442 U.S. at 602).

9
to nurture and care for their children. 20 Yet these too are inhibited, if
not severed outright, when a parent cannot enjoy association with her
child for a prolonged or, in this case, a permanent amount of time. 21
All together, our jurisprudence reflects “concepts of the family as
a unit with broad parental authority over minor children” and an
equally high duty to care for and nurture those children. 22 This rests “on
a presumption that parents possess what a child lacks in maturity,
experience, and capacity for judgment required for making life’s difficult
decisions.” 23 When parents are barred from being present in their
children’s lives, they lose an integral component of their authority and
their ability to carry out their duty to ensure their children’s wellbeing.
A parent cannot parent without presence.
Viewed through that lens, the imposition of a protective order
prohibiting all contact between a parent and her child for more than two
years deprives the parent of a fundamental right to make decisions
concerning the care, custody, and control of that child.
In concluding otherwise, the court of appeals noted that Stary
possesses auxiliary parental rights unaffected by the protective order. 24
It points out that, under her divorce decree, Stary may, among other

20 C.J.C., 603 S.W.3d at 819 (quoting Smith v. Org. of Foster Fams. for

Equal. & Reform, 431 U.S. 816, 844 (1977)).
21 Cf. In re J.F.-G., 627 S.W.3d 304, 314–15 (Tex. 2021) (recognizing the

damage that a parent’s absence can cause to a child’s emotional wellbeing).
22 Miller, 118 S.W.3d at 766 (quoting Parham, 442 U.S. at 602).

23 Id. (quoting Parham, 442 U.S. at 602).

24 695 S.W.3d at 427–28.

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rights, receive information concerning the children’s welfare, confer
with Ethridge when making decisions about the children’s welfare, and
consent to medical procedures, subject to Ethridge’s agreement.
Retention of these peripheral rights, however, does not absolve the order
from its removal of the paramount element of presence in Stary’s
relationship with her children. Without it, she is prohibited from
exercising her core rights as a parent.
It is also doubtful that Stary can meaningfully exercise those
auxiliary rights she retains. It is questionable the degree to which Stary
truly can “consult” with doctors or teachers regarding her children while
prohibited from being involved in their lives. Given that she cannot
communicate directly with the children, it too would be difficult for
Stary to manage her children’s estates, obtain passports for them, or
represent them in a legal action—some of the “many rights” that the
court of appeals noted she retains under the divorce decree. 25
B
Satisfied that the order deprives Stary of her fundamental right
to parent, the next step of our inquiry is to determine what process is
due. 26 The particular issue raised in this appeal is the applicable burden
of proof a trial court must apply when evaluating the evidence

25 Id. at 428.

26 See Loe, 692 S.W.3d at 228 (“Second, if a protected interest is
implicated, we consider whether the defendant followed due course of law in
depriving the plaintiff of that interest.”).

11
supporting a protective order prohibiting all contact between a parent
and a child for over two years. 27
The burden of proof functions to “instruct the factfinder
concerning the degree of confidence our society thinks [one] should have
in the correctness of factual conclusions for a particular type of
adjudication.” 28 Though civil cases ordinarily require that a
preponderance of the evidence support an affirmative finding, a
heightened clear and convincing standard applies when “particularly
important individual interests” are at risk. 29 Such cases require a
“degree of proof which will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be
established.” 30
Our Court extended the clear and convincing standard to parental
termination proceedings in In re G.M. 31 We reasoned that termination
“is of such weight and gravity that due process requires the state to
justify termination of the parent-child relationship by proof more

27 At oral argument, counsel for Stary asserted other due process
deficiencies. However, Stary did not present these complaints to the trial court,
and thus they are not preserved for appellate review. Tex. R. App. P. 33.1.
28 G.M., 596 S.W.2d at 847 (quoting Addington v. Texas, 441 U.S. 418,

423 (1979)).
29 Id. (quoting Addington, 441 U.S. at 424).

30 State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).

31 596 S.W.2d at 847.

12
substantial than a preponderance of the evidence.” 32 The Legislature
later incorporated this standard into the Family Code. 33
To determine whether this heightened standard should extend to
protective orders prohibiting a parent’s contact with her children for
more than two years, we consider: (1) “the private interests affected by
the proceeding;” (2) “the risk of error created by the State’s chosen
procedure;” and (3) “the countervailing governmental interest
supporting use of the challenged procedure.” 34
In the termination context, the United States Supreme Court has
described a parent’s private interest as a “commanding” one because the
government seeks to end her exercise of a fundamental right. 35 In
similar fashion, protective orders that prohibit contact for over two years
“break the ties between a parent and child.” 36 The order in this case goes
even further as it prevents all contact even after the children reach the
age of majority. 37

32 Id.

33 See Tex. Fam. Code § 161.001(b).

34 In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002) (quoting Santosky v.
Kramer, 455 U.S. 745, 754 (1982)). “We have applied this approach in a number
of cases, including parental-termination cases.” In re K.S.L., 538 S.W.3d 107,
114 (Tex. 2017); see also In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (applying
the approach); N.G., 577 S.W.3d at 236 (same).
35 J.F.C., 96 S.W.3d at 273 (quoting Santosky, 455 U.S. at 759).

36 Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).

37 The Family Code statutes governing termination contain no
prohibition on contact between parent and child once the child reaches the age
of majority. No-contact protective orders, however, can exceed past the child’s
age of majority and thus can intervene in the parent–child relationship for a
longer duration than termination.

13
Amicus counsel responds by noting that an affected parent may
seek review of a protective order twice and this distinguishes no-contact
protective orders from termination orders, which typically are final. 38
Two chances for review does not erase the fundamental similarity of
these orders in imposing a “unique kind of deprivation” of a parent’s
fundamental right. 39 Not all protective orders exceeding two years last
for a parent’s lifetime as this one does. All concern the same private
interest, however, in a proceeding that can deprive a parent of this
interest for a significant period of time. 40 Parents face the exact
“government interference with certain fundamental rights” for which we
have held due process requires heightened protection. 41 A heightened

38 See Tex. Fam. Code § 85.025(b)–(b-2) (allowing a person subject to a

protective order to file a motion no earlier than one year after it was rendered
requesting that the court review whether there is a continuing need for it and
to do so one more time no earlier than a year after the first motion is denied);
id. § 161.302(a)–(b) (allowing for a petition for the reinstatement of parental
rights to be filed only if the termination suit was filed by the Department of
Family and Protective Services, at least two years have passed, and the child
has neither been adopted or is the subject of a forthcoming adoption).
39 B.L.D., 113 S.W.3d at 352 (quoting Lassiter v. Dep’t of Soc. Servs. of

Durham Cnty., 452 U.S. 18, 27 (1981)).
40 See Tex. Fam. Code § 85.025(a-1) (authorizing the trial court to enter

an order for “a period that exceeds two years” upon making the requisite
findings); see also In re A.C., 560 S.W.3d 624, 629–30 (Tex. 2018) (describing a
parent’s fundamental right as “an interest far more precious than any property
right” (quoting Santosky, 455 U.S. at 758–59)).
41 N.G., 577 S.W.3d at 235 (quoting Troxel, 530 U.S. at 65).

14
burden of proof thus reflects the importance of the interest at stake and
the significant length of deprivation of that interest. 42
The risk of error in the current procedure similarly favors a
heightened burden of proof. The statutory regime governing protective
order proceedings leaves trial courts with much discretion as to the
duration of the order and its intrusion into the parent–child
relationship. 43 In short, parents face a deprivation of their fundamental
right for up to a lifetime if a trial court believes that their conduct rose
to the level of a felony, regardless of whether the parent has been
charged or convicted of a felony-level crime. 44 Underlying this discretion
is the standard requiring that a preponderance of the evidence support
the family violence findings, which may “misdirect the factfinder in the
marginal case” by demanding consideration of “the quantity, rather
than the quality, of the evidence.” 45 When a lengthy deprivation of a

42 See A.C., 560 S.W.3d at 630 (“This heightened proof standard carries

the weight and gravity due process requires to protect the fundamental rights
at stake.”).
43 E.g., Tex. Fam. Code § 85.025(a-1) (permitting trial courts to extend

an order for any period exceeding two years upon making a requisite finding);
id. § 85.022 (setting out actions that a trial court may prohibit a person found
to have committed family violence from committing, including communication
and contact with specific persons).
44 See id. § 85.025(a-1) (allowing the court to render a protective order

“effective for a period that exceeds two years” if it finds that the person subject
to the order committed an act constituting felony family violence, “regardless
of whether the person has been charged with or convicted of the offense”).
45 Santosky, 455 U.S. at 764. The protective-order statute is silent as to

the burden of proof, and so it is presumed that the typical civil standard
applies. See In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (“The applicable
evidentiary standard is generally determined by the nature of the case or

15
fundamental right is at risk, however, “the social cost of even occasional
error is sizable.” 46
The clear and convincing standard allocates the risk of error away
from complete deprivation of parental contact with her child by
requiring the firm conviction that a parent has engaged in family
violence that is felonious, repeated, or has resulted in serious bodily
harm. 47 It also instructs the factfinder—here, a trial court with
considerable discretion—of the greater “degree of confidence” required
for the decision at hand. 48
Lastly, it is undeniable that the government has a “substantial,
legitimate interest in protecting children and looking out for their best
interests,” which is at the forefront in a protective-order proceeding
involving a parent–child relationship. 49 We have long recognized that
“the best interest of a minor is usually served by keeping custody in the
natural parents.” 50 The government thus “registers no gain towards its

particular claim.”); see also Roper v. Jolliffe, 493 S.W.3d 624, 638 (Tex. App.—
Dallas 2015, pet. denied) (“Because [protective order] proceedings are civil in
nature, the traditional standard of proof by a preponderance of the evidence
applies.”).
46 Santosky, 455 U.S. at 764.

47 Tex. Fam. Code § 85.025(a-1); See G.M., 596 S.W.2d at 847 (“The
interests at stake in those cases are deemed to be more substantial than mere
loss of money and some jurisdictions accordingly reduce the risk to the
defendant of having his reputation tarnished erroneously by increasing the
plaintiff's burden of proof.” (quoting Addington, 441 U.S. at 424)).
48 G.M., 596 S.W.2d at 847 (quoting Addington, 441 U.S. at 424).

49 N.G., 577 S.W.3d at 236.

50 Spratlan, 543 S.W.2d at 352.

16
declared goals when it separates children from the custody of fit
parents.” 51 The government’s interest too is best served by reducing the
risk of the erroneous deprivation of parental rights. And the trial courts
applying the clear and convincing evidence standard for two-plus-year
protective orders are intimately familiar with its use in the parent–child
context. 52 Any governmental interest in retaining a preponderance
standard is slight compared to the protection a heightened standard
affords against overreaching protective orders.
In first extending the clear and convincing standard to parental
termination cases, we held that “[t]he right to enjoy a natural family
unit is no less important than the right to liberty.” 53 No-contact
protective orders against a parent that exceed two years involve a
sufficiently similar inhibition of the same right, justifying the same clear
and convincing burden of proof. We hold that a trial court must find that
clear and convincing evidence supports the imposition of a protective
order prohibiting all contact between a parent and her children for a
period exceeding two years. 54

51 Santosky, 455 U.S. at 767 (quoting Stanley, 405 U.S. at 652).

52 See Tex. Fam. Code § 161.001(b) (“The court may order termination

of the parent-child relationship if the court finds by clear and convincing
evidence . . . .”).
53 G.M., 596 S.W.2d at 847.

54 At oral argument, Stary also argued that due process required a
felony conviction before a trial court can find that felony family violence
occurred and extend the order beyond two years. See Tex. Fam. Code
§ 85.025(a-1)(1). In her briefing, she complains more broadly that she was not
afforded the constitutional protections of a criminal trial. However, this
argument was not preserved for review because it was not presented to the
trial court. Tex. R. App. P. 33.1.

17
C
The right of parents to the care, custody, and control of their
children is fundamental, but it “is not an absolute unconditional right.” 55
Underlying state intervention in protective order cases is the State’s
duty to “protect the safety and welfare of [] children” facing family
violence. 56 Protection of the child remains a paramount consideration. 57
When one parent applies for a protective order on behalf of his
children against the other parent, these two concerns—a parent’s
fundamental right in the parent–child relationship and the protection of
the child—appear on opposite sides. Unlike in termination proceedings,
a court is not statutorily required to find that a protective order is in the
best interest of the child before it prevents all contact by a parent. 58 But

55 De Witt v. Brooks, 182 S.W.2d 687, 690 (Tex. 1944); see also Loe, 692

S.W.3d at 228 (“Parents’ right to exercise control over decision-making for
their children has limits.”).
56 Cf. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (explaining that this

duty underlies any state intervention in the parent-child relationship); see also
Tex. Fam. Code § 153.001(a) (“The public policy of this state is to . . . provide a
safe, stable, and nonviolent environment for the child.”).
57 In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994) (“[P]rotection of the

child is paramount.”).
58 See Tex. Fam. Code § 161.001(b)(2) (requiring termination be in the

best interest of the child). The only best interest finding required by the
protective order statute occurs when a court enters an order applying to both
the applicant and the person the order is entered against. Id. § 85.001(b)(2). In
these orders, the court can do things like grant exclusive possession of a
residence to one party, require child support payments by one party, or prohibit
a party from removing a child from the possession of another person named in
the order. Id. § 85.021. For these orders, the court must find that they are in
“the best interest of the person protected by the order or member of the family
or household of the person protected by the order.” Id. § 85.001(b)(2). However,

18
the purpose of protective orders that forbid contact between a parent
and child should be “to protect the best interests of the children, not to
punish parents for their conduct.” 59 Thus, as we have held in the
termination and custody contexts, a trial court must consider the child’s
best interest in deciding whether to ban all parental contact for longer
than two years. 60 Affording proper weight to the child’s best interest
tempers the discretion trial courts possess to enter protective orders for
any period between two years and a parent’s lifetime. 61
III
Stary requests that this Court reverse the trial court’s protective
order and render judgment denying Ethridge’s application. Under the
standards announced today, trial courts rendering a protective order

no such finding is statutorily required for the protective order that only applies
to the person found to have committed family violence. Id. § 85.001(b)(1).
59 A.V., 113 S.W.3d at 361.

60 See id. (“Therefore in parental-rights termination proceedings,
though parents face losing this highly-protected legal relationship, courts
cannot ignore the statute’s remedial purpose of protecting abused and
neglected children.”); C.J.C., 603 S.W.3d at 812 (recognizing that “the best
interest of the child is the paramount issue in a custody determination”). Our
holdings apply to protective orders lasting longer than two years because we
are reviewing the application of a statute governing orders of that duration.
The Legislature, not the Constitution, drew a line at two years. We do not
comment on the constitutional implications of protective orders lasting less
than two years.
61 This temperance stems from the presumption that a child’s best
interest is served when raised by natural parents. See In re V.L.K., 24 S.W.3d
338, 341 (Tex. 2000) (“The presumption that the best interest of the child is
served by awarding custody to the parent is deeply embedded in Texas law.”);
Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955) (“This presumption is based
upon the natural affection usually flowing from parentage.”).

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exceeding two years against a parent must (1) make the requisite
findings for an order to exceed two years under a clear and convincing
standard and (2) consider the best interest of the child.
Without specifying the applicable burden of proof, the trial court
found that Stary committed felony family violence “based on the
evidence and testimony presented.” It also found that the order was in
the best interest of the three children. It did not provide further
requested findings of fact and conclusions of law.
In reviewing the trial court’s findings, the court of appeals applied
a legal sufficiency analysis under a preponderance of the evidence
standard. 62 It did not review the best interest finding. Thus, the record
contains no findings under the burden of proof announced today. In
cases requiring clear and convincing evidence, the evidence must be
such that “a factfinder could reasonably form a firm belief or conviction
about the truth of the matter on which the State bears the burden of
proof.” 63
Here, the court of appeals held that some evidence exists to show
that Stary committed felony level family violence warranting a
protective order lasting longer than two years. 64 What is not apparent
is whether the trial court would have prohibited Stary from seeing or

62 See 695 S.W.3d at 430 (“If more than a mere scintilla of evidence

exists, we will overrule the legal sufficiency challenge.”).
63 J.F.C., 96 S.W.3d at 265–66.

64 695 S.W.3d at 435. Ethridge testified, under a hearsay exception, to

what the children had recounted to him about Stary’s physical abuse. See Tex.
Fam. Code § 84.006. He also introduced medical records corroborating his
testimony regarding the incident leading to criminal charges.

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speaking with her children for her lifetime under a heightened
evidentiary standard that recognizes the fundamental rights of parents.
Given that some evidence may exist to support an order prohibiting
contact for longer than two years, the “most prudent course” is to
remand the case to the trial court to conduct a new hearing under the
appropriate evidentiary burden. 65
* * *
Protective orders ordinarily provide short-term protection from
family violence. Protective orders that ban all communication between
a parent and her children for more than two years, however, present
special consideration of the fundamental right to parent. Due process
demands that clear and convincing evidence support such an order and
an evaluation of whether prohibiting all contact between a parent and
child for the duration of the order is in the child’s best interest. In light
of the standards announced today, we reverse the judgment of the court
of appeals and remand the case to the trial court for a new hearing.

Jane N. Bland
Justice

OPINION DELIVERED: May 2, 2025

65 Cf. Thomson v. Hoffman, 674 S.W.3d 927, 928–29 (Tex. 2023)
(remanding to the court of appeals as “the most prudent course” of action
“[b]ecause the parties and the court of appeals did not have the opportunity to
evaluate this case” in light of a new legal framework announced by the Court).
As we are remanding the case, we need not reach Stary’s further challenge to
the exclusion of evidence at the first hearing. See Long v. Griffin, 442 S.W.3d
253, 256 (Tex. 2014).

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