JUSTICE BLAND delivered the opinion of the Court. JUSTICE LEHRMANN filed a concurring opinion. In Troxel v. Granville, the United States Supreme Court held unconstitutional a trial court’s order requiring a fit parent to permit visitation with her children’s grandparents.[1] The Court recognized that the United States Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”[2] To protect that right, a plurality in Troxel applied “a presumption that fit parents act in the best interest of their children.”[3] We have similarly recognized that “[t]he presumption that the best interest of the child is served by awarding custody to [a] parent is deeply embedded in Texas law.”[4] The government may not “infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better decision’ could be made.”[5] Even before Troxel, the Texas Legislature adopted a parallel presumption, requiring that a child’s parents be appointed managing conservators in initial child custody suits unless it “would significantly impair the child’s physical health or emotional development.”[6] The statutory presumption governing original custody determinations, however, is not carried forward into the statute governing proceedings to modify those determinations.[7] Thus, we have held that the statutory presumption does not apply in modification proceedings.[8] The question presented in this case is whether the presumption that fit parents act according to the best interest of their children applies when modifying an existing order that names a parent as the child’s managing conservator. Because a fit parent presumptively acts in the best interest of his or her child and has a “fundamental right to make decisions concerning the care, custody, and control” of that child,[9] we hold that it does. I A Abigail was born in 2014.[10] Abigail’s father, C.J.C., is the relator in this mandamus proceeding. Abigail’s mother died in a car accident when Abigail was three years old. Abigail’s father and mother lived together from 2011 to 2016 and never married. In 2016, Abigail’s father filed a suit requesting that a court determine conservatorship, possession, and child support for Abigail. At the conclusion of that proceeding, the trial court named Abigail’s mother and father her joint managing conservators. The order granted Abigail’s mother the right to designate Abigail’s primary residence and granted Abigail’s father regular periods of possession. The court adopted the parents’ “custom possession order” that divided possession almost equally by the time Abigail was three.[11] Abigail’s mother became involved in a relationship with Jason. By September 2017, Abigail and her mother had moved into Jason’s home. Until her mother’s death, Abigail resided with her mother in Jason’s home during her mother’s periods of possession.[12] In January 2018, Abigail’s mother petitioned to modify the existing court order. She sought increased child support and to modify Abigail’s possession schedule. Abigail’s father answered and asked that the court deny the requested relief. Abigail’s mother died in July 2018 while that suit was pending. Abigail began to live exclusively with her father. Her mother’s attorney filed a suggestion of death,[13] and Abigail’s father moved to dismiss the modification proceeding. While the motion to dismiss was pending, Abigail’s maternal grandparents petitioned to intervene in the modification suit. The grandparents asked to be named joint managing conservators with Abigail’s father.[14] Jason also petitioned to intervene, seeking similar relief. Both Jason and Abigail’s grandparents asked for court-ordered visitation with her. Abigail’s father objected to court-ordered visitation and moved to strike both petitions for lack of standing, which the trial court denied.[15] Abigail’s father sought mandamus relief in the court of appeals. The court of appeals granted relief in part, concluding that Abigail’s grandparents had no standing to seek conservatorship of Abigail because no evidence existed that her father’s conservatorship “would significantly impair [Abigail's] physical health or emotional development,” as the statute governing grandparent intervention requires.[16] But the court of appeals determined that Jason had standing to intervene because he had exercised “actual care, control, and possession” of Abigail when she resided with her mother, for at least six months preceding her mother’s death.[17] We denied the parties’ requests for mandamus relief in this Court. The trial court then held an evidentiary hearing. Jason testified, along with Abigail’s father, grandmother, and therapists. Abigail’s father agreed that Abigail’s maternal grandparents should remain active in her life. He stated that Abigail’s grandparents could see her “on a regular basis,” noting that they had visited Abigail and that he had invited them to attend Abigail’s activities since her mother’s death. Though Abigail’s father did not object to Abigail’s seeing Jason while she visited her grandparents, he objected to Jason’s having a legal right to possession of Abigail “on his own.” “As her father and a fit parent,” Abigail’s father testified, “I don’t see why anyone else outside of her mother or myself would have those rights to visitation and to make decisions for her.” Abigail’s father further testified that Abigail had expressed no desire to visit Jason. Over Abigail’s father’s objection, the trial court entered temporary orders naming Jason a possessory conservator of Abigail. Those orders grant Jason an unrestricted “duty of care, control, protection, and reasonable discipline” during his periods of possession. The court also granted Jason possession of Abigail for six hours every second and fourth Saturday for four months, followed by three months during which Jason would additionally have overnight possession every second and fourth Saturday, from noon Saturday until Sunday afternoon. The trial court further stated that, at the expiration of those seven months, the parties “will be back here for a final hearing” or will “have a mediation at which [they] will be able to work out a schedule on an ongoing basis.” The court ordered Abigail’s father and Jason to electronically “communicate regarding the child.” The court warned that it might order “reunification therapy” if the parties “get into a situation where I feel like there needs to be another therapist involved to help this child.” “The [c]ourt has determined what is in [Abigail's] best interest,” it continued, “and you are to make this as agreeable as you can force yourself to do.” In addition to these periods of possession, the court granted Jason “the right to confer with [Abigail's] counselor . . . regarding his visits with the child” and “the right to receive information regarding school activities and attend activities accompanied by [Abigail's grandparents] at the [grandparents'] election.” The orders provide that, during Jason’s period of possession, Abigail’s grandparents “shall be present for the comfort of the minor child.” And the orders grant Jason “the right to consent to medical, dental, and surgical treatment during an emergency” during his periods of possession. Abigail’s father filed a second petition for writ of mandamus in the court of appeals, challenging the temporary orders. The court of appeals denied relief.[18] He then petitioned this Court for relief, arguing that the trial court’s orders violate his right to parent Abigail without government intervention.[19] B Abigail’s father observes that no evidence shows, and no one contends, that he is an unfit parent. The trial court therefore had no basis to name Jason as Abigail’s possessory conservator, he argues, nor to order that Jason have periods of possession over her father’s objection. Invoking Troxel and decisions from this Court, Abigail’s father argues that he has a “fundamental due process right to the presumption that, as a fit parent, he is acting in the best interests of his child and should be able to do so free from state interference.” Because Jason did not rebut the presumption established in Troxel and reflected in our common law, Abigail’s father continues, the trial court’s orders are an abuse of discretion. Relying on our decision in In re V.L.K.,[20] Jason responds that no fit-parent presumption exists in suits seeking to modify an original custody determination. In that case, we did not refer to Troxel or to the constitutional presumption Troxel applied. But with respect to the Family Code’s statutory presumption, we held: “Because the Legislature did not express its intent to apply the presumption in Chapter 156 modification suits, courts should not apply the presumption in those cases.”[21] Jason further responds that we should not accord Troxel weight because the Texas statute granting standing to a nonparent to seek conservatorship or possession of a child is narrower than the “breathtakingly broad” Washington statute that the Supreme Court examined in Troxel.[22] II A writ of mandamus will issue if a trial court abuses its discretion and no adequate remedy by appeal exists.[23] In determining whether to grant mandamus relief, an appellate court should defer to the trial court’s factual determinations supported by the record.[24] But an appellate court may grant mandamus relief if the trial court “fails to correctly analyze or apply the law.”[25] And we previously have granted relief to require a trial court to vacate orders erroneously permitting nonparents access to a child over a fit parent’s objection.[26] In that case, after concluding that the temporary orders “divest[ed] a fit parent of possession of his children,” we observed that “[s]uch a divestiture is irremediable, and mandamus relief is therefore appropriate.”[27] A The United States Supreme Court has long held that the Constitution “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”[28] This recognition stems from “a strong tradition of parental concern for the nurture and upbringing of their children.”[29] The Supreme Court’s jurisprudence rejects “any notion that a child is ‘the mere creature of the State,’” but instead holds “that parents generally ‘have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.’”[30] Accordingly, “the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”[31] A majority of the Troxel Court found protection for this fundamental right—”perhaps the oldest of the fundamental liberty interests recognized by this Court”—within the Fourteenth Amendment.[32] The parties in this case do not disavow that protection. And the justices in Troxel who might not root this right in substantive-due-process jurisprudence nevertheless similarly recognized a “fundamental right of parents to direct the upbringing of their children.”[33] Texas jurisprudence underscores this fundamental right, and we too recognize that it gives rise to a “legal presumption” that it is in a child’s best interest to be raised by his or her parents.[34] Although the best interest of the child is the paramount issue in a custody determination, “[t]he presumption is that the best interest of the children” is served “by awarding them” to a parent.[35] Thus, the fit-parent presumption is “deeply embedded in Texas law” as part of the determination of a child’s best interest.[36] The Texas Legislature does not disagree. Five years before Troxel,[37] the legislature added a statutory parental presumption applicable to original custody determinations: [U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.[38] The statute that grants standing to intervene in custody cases, however, does not include that presumption.[39] Nor does the Family Code’s general modification statute, which authorizes a court to modify a custody order if it is “in the best interest of the child” and “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed.”[40] Relying on the absence of a statutory presumption in the standing and modification statutes, Jason argues that a fit-parent presumption does not apply in this modification proceeding. Abigail’s father responds that the fit-parent presumption found in our common law and in Troxel is distinct from chapter 153′s statutory presumption and embedded within any best-interest determination for a child—including that required to modify an existing child custody order under Family Code chapter 156. B Troxel‘s underlying facts are strikingly similar to this case: there, the trial court ordered that the paternal grandparents have court-ordered visitation with their two grandchildren after the children’s father died.[41] The children’s mother challenged the order and the Washington statute that permitted the grandparents’ intervention on the basis that the order infringed on her right as a presumptively fit parent to make decisions in her children’s best interest. The Supreme Court of Washington agreed and set aside the order, holding the statute unconstitutional.[42] The United States Supreme Court affirmed. The Troxel plurality concluded that the statute was unconstitutional because it subjected “any decision by a parent concerning visitation of the parent’s children” to court review and “gave no special weight” to the mother’s “determination of her daughters’ best interests.”[43] The statute thus unconstitutionally permitted a court to “disregard and overturn any decision by a fit custodial parent concerning visitation . . . based solely on the judge’s determination of the child’s best interests.”[44] As with Abigail’s grandparents, the grandparents in Troxel did not allege that the children’s mother was an unfit parent.[45] “That aspect of the case is important,” the plurality emphasized, “for there is a presumption that fit parents act in the best interests of their children.”[46] The Court rejected the notion that a fit parent’s desire about visitation is merely a factor in determining best interest, expressly disapproving of the trial court’s explanation that “I think [visitation with the grandparents] would be in the best interest of the children and I haven’t been shown it is not in [the] best interest of the children.”[47] The plurality observed that this was “exactly the opposite” of the constitutionally enshrined presumption that it is the fit parent who makes that decision, free from government interference.[48] Accordingly, the plurality observed, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”[49] This case presents parallel facts. Like the grandparents in Troxel, Jason argues that it is in Abigail’s best interest to continue a relationship with him and her grandparents, and both sought court intervention to order that it happen. But Jason does not argue—nor did the trial court find— that Abigail’s father is an unfit parent. The trial court held two evidentiary hearings. Both Jason and Abigail’s grandmother described their involvement in Abigail’s life, their desire to continue a relationship with her, and their belief that court-ordered visitation is in her best interest. Both conceded that Abigail’s father had allowed her grandparents and Jason some visitation but noted that visitation invitations had become less frequent during this litigation. Jason further testified that he had fulfilled a parental role to Abigail while Abigail resided with her mother. He cared for and disciplined Abigail, prepared meals for her, bathed her, and helped her get ready for school or for bed. Jason asked the court to name him a joint managing conservator because his access to Abigail is otherwise at her father’s “sole discretion,” and it is in Abigail’s best interest to keep “all of her family in her life.” Jason recognized, however, that Abigail’s father always has been active in Abigail’s life. Jason does not seek to remove Abigail’s father as a managing conservator because “as a parent, [her father] may have a little bit stronger voice,” and her father “is her dad.” A therapist who had seen Abigail before her mother’s death expressed “concerns” about Abigail’s father’s parenting style but not that he is an unfit parent. The one concern she noted was a report that Abigail’s father allegedly had spanked Abigail, but the therapist did not offer specifics and conceded that she did not know the reason for it. Abigail’s grandmother similarly expressed nonspecific “concerns” about Abigail’s father’s parenting. But she conceded that Abigail’s father is “active in [Abigail's] life.” And she does not contend that Abigail’s father “is not fit to be joint managing conservator” or that he is “a danger to [Abigail's] physical or emotional health.” Abigail’s father testified that, after her mother’s death, he changed Abigail’s counselor to one who specializes in child trauma. That counselor testified that Abigail’s father is “a good dad” who is “focused on what we need to do to help [Abigail] get to the best place possible.” She observed that Abigail is “happy, healthy,” and “progressing.” She testified that Abigail’s father has fully embraced counseling for Abigail and implemented the counselor’s recommendations. Abigail’s father’s testimony over the course of the two hearings presents no evidence that he is anything other than a loving and attentive parent to Abigail. He played an active role in Abigail’s life before her mother’s death, with Abigail living with him nearly half the time after she turned three. There is no evidence that Abigail’s father did not adequately care for her physical or emotional needs. He actively encouraged and attended her activities. Abigail is now in preschool and “knows the alphabet in English and in Spanish,” “knows her numbers in English and in Spanish,” and “can write her name.” Abigail’s father works with Abigail on the skills she learns at school “nightly.” Abigail and her father attend church services together. Though he objects to court-ordered visitation, Abigail’s father testified that her grandparents could see Abigail on “a regular basis” in the future and that Jason could also visit Abigail with others present. Abigail’s father talks with Abigail about her mother to help Abigail remember her: “[W]e look at pictures together. We talk about her mom, what she liked about her mom, different things as it reminds her of her mom.” Since Abigail’s mother’s death, Abigail’s father has married a fifth-grade school teacher. Abigail’s father characterizes Abigail’s relationship with her stepmother as “very loving” and “healthy,” describing his wife as “a perfect role model for [Abigail] given the situation that we’re in.” In awarding Jason visitation and overnight possession over Abigail’s father’s objection, the trial court essentially substituted its determination of Abigail’s best interest for her father’s, stating, “The court has determined what is in [Abigail's] best interest, and you are to make this as agreeable as you can force yourself to do.” Like the trial court’s decision in Troxel, the trial court’s decision in this case reflected “exactly the opposite” of a parental presumption.[50] The court instead placed on a fit parent “the burden of disproving that visitation would be in the best interest of [his child].”[51] C We agree that the “nonparent standing threshold in Texas is . . . much higher and narrower than the one rejected in Troxel.”[52] Texas has a standing statute for grandparents specifically and another for nonparents, including grandparents, who have exercised actual care, control, and possession of the child.[53] The grandparent-specific statute requires grandparents seeking to intervene in a pending suit to demonstrate that appointment of a parent as sole managing conservator would “significantly impair the child’s physical health or emotional development.”[54] Grandparents who establish standing carry a further burden on the merits that echoes the Troxel plurality: they must “overcome the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that the denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.”[55] The court of appeals concluded that Abigail’s grandparents could not clear the standing threshold.[56] But the nonparent standing statute does not import a fit-parent presumption into custody modification proceedings.[57] Those who establish such standing face a different burden under the modification statute—a court may modify a custody order if it is “in the best interest of the child” and “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed.”[58] As Jason observes, the statute places no burden on him to overcome a fit-parent presumption. In In re H.S.—a standing case—we recognized that “[i]n stark contrast to the Washington statute at issue in Troxel,” section 102.003(a)(9) “allows only nonparents who have exercised ‘actual care, control, and possession’ of a child for at least six months” to seek conservatorship or possession of a child.[59] Thus, we held that the standing threshold in subsection (a)(9) “does not unconstitutionally interfere with parents’ fundamental liberty interest in raising their children.”[60] But we carefully expressed “no opinion” as to whether the grandparents in that case were “entitled to conservatorship or visitation rights,” cautioning that the standing statute “addresses only who may file a suit affecting the parent-child relationship, not what a petitioner must show to obtain the relief she seeks.”[61] Jason relies on H.S. to suggest that Troxel is completely inapplicable to the narrower Texas nonparent-standing statute. Troxel, however, did not turn merely on the breadth of those granted standing to seek court-ordered access to a child; it also held that a statute that curtails a presumptively fit parent’s rights is unconstitutional. The Washington statute unconstitutionally infringed on the mother’s “fundamental parental right” because it “contain[ed] no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever.”[62] Although Texas has narrowed the classes of nonparents who may assert standing in child custody proceedings to comport with one aspect of Troxel, we do not agree that this distinction resolves the separate constitutional infirmity that can result when a court’s best-interest determination overrides the expressed desires of a fit parent. Accordingly, we conclude that a court must apply the presumption that a fit parent—not the court—determines the best interest of the child in any proceeding in which a nonparent seeks conservatorship or access over the objection of a child’s fit parent. Though Jason challenges the applicability of the fit-parent presumption, he does not contend that he adduced evidence in the trial court that overcomes that presumption. Jason instead asserts that we previously rejected requiring such a presumption in modification proceedings, relying on two cases: In re V.L.K.[63] and Taylor v. Meek.[64] Neither case, however, involved a modification proceeding in which a fit parent had been named the child’s managing conservator in the order sought to be modified. In V.L.K., the child’s imprisoned mother had consented to the appointment of the child’s maternal grandmother as managing conservator.[65] The child’s paternal aunt and uncle moved to modify the agreed decree, seeking to be appointed the child’s joint
