Unless you are one of the lucky ones who has the time to catch up on the latest news you may not know that the children in the middle of the El Dorado custody battle were returned to their homes in May. Now, the Texas Department of Child Protective Services is seeking custody of eight of the returned children because their mothers are refusing to agree to keep them away from the men practicing and promoting underage marriage.

As you know, the Yearning for Zion Ranch is a 1700 acre ranch near El Dorado and home to a community of persons associated with the Fundamentalist Church of Jesus Christ of Later Day Saints (FLDS). After a telephone call from an alleged minor reporting physical and sexual abuse, the Texas Department of Child Protective Services took possession of all 468 children at the Ranch. The Department did so without a court order and then sought emergency orders regarding custody of the children within the suits affecting the parent-child relationships (SAPCR). (The Department is authorized to take custody of children without a court order in certain circumstances pursuant to Texas Family Code Section 262.104(a)). The Department cited its concern that the community had a culture of polygamy and of directing girls younger than eighteen to enter spiritual unions with older men and have children.

The District Court issued temporary orders continuing the Department's custody of the children and allowing for visitation by parents only with the Department's agreement. The Austin Court of Appeals reviewed the case and ordered the district court to vacate its temporary orders. The Texas Supreme Court upheld the Austin Court of Appeals. The opinion stated, “On the record before us, removal of the children was not warranted.” In the Per Curiam Opinion, the Court went on to state that the Family Code provides courts with “broad authority to protect children short of separating them from their parents and placing them in foster care.” The Court also seemed to suggest other orders available to the district court, short of separation, in order to protect the children and noted the concession of these options from the mothers that filed the mandamus.

Three Justices agreed with the opinion in that boys and pre-pubescent girls were not in imminent danger and thus their removal was not justified. However, these Justices noted that girls who had reached the age of physical development were in imminent danger because these girls were eligible for “spiritual marriage”. These girls that were younger than seventeen were being sexually abused according to Texas law because they were not legally married to the man engaging in a sexual relationship with them. Thus, the dissented disagreed with the opinion as it related to the population of pubescent girls.

Despite these opinions and the return of the children, the SAPCR suits are not closed as evidenced by the recent custody filings. For lawyers this brings up some interesting questions:

• What is legal marriage and should Texas recognize spiritual marriages? (In Texas a marriage is a union between a man and a woman. The Family Code states that the county clerk may not issue a marriage license to anyone under the age of 16 without a court order or to anyone 16 or 17 without consent of the child's parents, documents establishing dissolution of a prior marriage, or court order.)
• If Texas did recognize the FLDS spiritual marriages, could the husbands still be sexually assaulting their underage wife?
• Should the same attorney be assigned to act in the best interest of the child as well as an advocate for the child?