# Stary v. Ethridge Supreme Court of Texas, No. 23-0067 **Stary v. Ethridge, No. 23-0067 (Tex. May 2, 2025). Holding: Due process requires clear and convincing evidence to support a protective order that prohibits all contact between a parent and her children for more than two years under Family Code section 85.025(a-1), because such an order profoundly interferes with the parent's fundamental right to the care, custody, and control of her children in a way similar to termination, and the trial court must also consider the children's best interest in deciding whether to order a ban of that length.** Practice areas: family law, federal constitution, texas constitution ## Key issues - Due process requires clear and convincing evidence to support a protective order that prohibits all contact between a parent and her children for more than two years under Family Code ยง 85.025(a-1), because such an order profoundly interferes with a parent's fundamental right to the care, custody, and control of her children in a way similar to termination. - The trial court must also consider the child's best interest in deciding whether to ban all parental contact for longer than two years; because the court of appeals applied a preponderance standard, the Court remanded for a new hearing. ## Factual History Christine Stary and Brady Ethridge divorced in 2018 and agreed to share custody of their three children (Opinion, PDF p. 3). 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 (Opinion, PDF p. 3). A week after the arrest, Ethridge applied for a civil protective order lasting longer than two years, alleging that Stary had committed felony family violence and caused serious bodily injury to the children, and the trial court issued an ex parte temporary order preventing her from communicating with or going near them (Opinion, PDF p. 3). ## Procedural History At the September 2020 hearing, Ethridge testified to incidents the children had recounted to him, which the Family Code allows under a hearsay exception for children under twelve, and introduced medical records; the trial court also interviewed the children in chambers, and Stary denied injuring them (Opinion, PDF pp. 3-4 & n.1). The trial court found that Stary committed family violence that would be a felony if charged and issued a protective order of "permanent duration," lasting for her lifetime, that bars all contact with the children and requires her to stay 100 yards away from them (Opinion, PDF p. 4). The First Court of Appeals affirmed, holding that a lifetime no-contact order is not equivalent to terminating parental rights and so requires no heightened standard of proof, over one dissent (Opinion, PDF p. 5). Stary petitioned for review on February 28, 2023; on March 1, 2024, the Court requested merits briefing and appointed amicus counsel to defend the court of appeals' judgment because Ethridge declined to appear, and it granted the petition on August 30, 2024, heard argument on October 29, 2024, and decided the case on May 2, 2025 (Docket; Opinion, PDF pp. 1, 7, 21). ## Issues Presented Stary presents whether the trial court violated her constitutional rights by ordering a lifetime protective order that is a de facto termination of her parental rights without due process, whether it did so based on an unadjudicated felony charge, whether the evidence was legally and factually insufficient, and whether it erred in excluding evidence of the father's history of domestic violence (Brief on the Merits (Petitioner), PDF p. 14; Petition for Review (Petitioner), PDF p. 10). The Court decided whether due process requires clear and convincing evidence to support a protective order that prohibits all contact between a parent and her children for more than two years (Opinion, PDF pp. 2, 7, 11-12). ## Standard(s) of Review The Court reviews questions raising constitutional concerns de novo; in a due-process challenge it asks whether the order deprives the party of a protected interest and, if so, what process is due, weighing the private interests affected, the risk of error from the procedure used, and the countervailing governmental interest (Opinion, PDF pp. 8, 11, 13). ## Legal Arguments **Whether due process requires clear and convincing evidence.** **Petitioner (Stary):** The trial court's lifetime protective order deprives her of her fundamental right to the care, custody, and control of her children and amounts to a de facto termination of her parental rights, and the protective-order statute provides an end-around the constitutional requirements that Chapter 161 meets for termination (Brief on the Merits (Petitioner), PDF p. 14; Petition for Review (Petitioner), PDF p. 16; Opinion, PDF p. 7). **Appointed amicus counsel (defending the judgment):** Lengthy protective orders that prohibit a parent's contact with her children are not equivalent to termination, even when they last for her lifetime, because they do not divest a parent of all rights as a termination order does, and the Family Code gives the parent up to two opportunities to ask the court to review the order, whereas termination orders are permanent once final (Opinion, PDF p. 7). Respondent Ethridge declined to appear in either the court of appeals or this Court (Opinion, PDF p. 7). ## Stated Reasons the Court Should Take the Case Stary argued that the United States Constitution and Texas law give significant protection to parental rights, that the lifetime protective order amounts to a de facto termination without the heightened protections Chapter 161 supplies, and that the protective-order statute provides an end-around those requirements (Petition for Review (Petitioner), PDF p. 16). ## Practice Area Tags family-law, federal-constitution, texas-constitution ## Procedural Posture/Vehicle Petition for review from the First Court of Appeals in a protective-order appeal; argued October 29, 2024, and decided May 2, 2025 (Opinion, PDF pp. 1, 5, 21). ## Amicus Involvement - [Heritage Defense Fund](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=04e9dd81-f34d-416c-a0f3-539113c5fc2a&coa=cossup&DT=BRIEFS&MediaID=d0bf0a1c-aaec-4f82-bb77-f06e35bbfd5f) filed an amicus curiae brief on July 11, 2023. - [Pro Bono Committee Appointed Amicus Attorney, Marshall A. Bowen](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=1e6f6d9b-b0d5-4cea-9525-b8a7ed483730&coa=cossup&DT=BRIEFS&MediaID=af561815-a8c8-4256-88dc-ba172b8c7e20) filed a brief on April 22, 2024, as counsel appointed to defend the judgment (Opinion, PDF p. 7). - [Texas Association Against Sexual Assault, Texas Council on Family Violence, and Texas Advocacy Project](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=13c0e394-5170-4475-9d7d-2a9801cd615f&coa=cossup&DT=BRIEFS&MediaID=40c77b18-8143-4fd9-abfd-450a1f3cea7a) filed an amicus curiae brief on May 3, 2024. - [Family Freedom Project](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=8590851e-2445-413e-8ed2-cebf296aecb0&coa=cossup&DT=BRIEFS&MediaID=da627852-b539-4d6f-ab41-74454d9ff867) filed an amicus brief on May 22, 2024. - [Wolfgang P. Lircay De Mino](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=d2e310d0-da0a-4d94-998f-d901e8f186d7&coa=cossup&DT=BRIEFS&MediaID=0e3a8ab1-a355-4110-915e-cfe567559c64) filed an amicus curiae brief on May 2, 2025. ## Holding Due process requires clear and convincing evidence to support a protective order that prohibits all contact between a parent and her children for more than two years under Family Code section 85.025(a-1), because such an order profoundly interferes with the parent's fundamental right to the care, custody, and control of her children in a way similar to termination, and the trial court must also consider the children's best interest in deciding whether to order a ban of that length (Opinion, PDF pp. 2-3, 17-19). ## Court's Reasoning **Deprivation of a fundamental right.** Parents have a fundamental right to make decisions about the care, custody, and control of their children, and the Court reasoned that the exercise of that right depends on presence and communication: "a parent cannot parent without presence," so an order barring all contact for more than two years deprives the parent of that right (Opinion, PDF pp. 5, 8-10). The court of appeals relied on the auxiliary rights Stary kept under her divorce decree, but those peripheral rights do not replace the lost core right and it is doubtful she could meaningfully exercise them while barred from contact (Opinion, PDF pp. 10-11). **What process is due.** A heightened clear-and-convincing standard applies when particularly important individual interests are at stake, as the Court held for parental termination in *In re G.M.*, and it weighed the private interests, the risk of error, and the governmental interest (Opinion, PDF pp. 11-13). The private interest is commanding, since such orders break the ties between parent and child and, as here, can last past the children's majority, longer than termination; two opportunities for review do not erase the similarity (Opinion, PDF pp. 13-14). The risk of error is significant because trial courts have wide discretion over duration and a parent can be deprived for life on a preponderance finding of felony-level conduct, even without a charge or conviction, and the heightened standard allocates that risk away from complete deprivation (Opinion, PDF pp. 14-16). The government's interest in protecting children is best served by avoiding erroneous deprivation, and trial courts are familiar with the standard from termination cases, so the Court held that a trial court must find by clear and convincing evidence the requisite facts for an order prohibiting all contact for more than two years (Opinion, PDF pp. 16-17). **Best interest and remand.** Unlike termination, the protective-order statute does not require a best-interest finding before a parent's contact is barred, but because the purpose of such orders is to protect the children and not to punish the parent, the trial court must consider the child's best interest in deciding whether to ban all contact for longer than two years (Opinion, PDF pp. 18-19). The trial court applied no stated burden of proof and the court of appeals applied a preponderance-based legal-sufficiency review and did not review best interest, so the Court remanded for a new hearing under the correct standard instead of rendering judgment for Stary (Opinion, PDF pp. 19-21). The Court did not decide Stary's other due-process complaints, which were not preserved, and expressed no view on orders shorter than two years (Opinion, PDF pp. 12 n.27, 17 n.54, 19 n.60). ## Disposition The Court reversed the court of appeals' judgment and remanded the case to the trial court for a new hearing (Opinion, PDF p. 21). ## Vote Breakdown Justice Bland delivered the opinion of the Court (Opinion, PDF p. 1). --- Source: The SCOTX Report, https://scotxreport.com/cases/23-0067. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.