Dallas Divorce Lawyer Blog
A motion to modify the parent-child relationship has been filed. You, even though you are not a parent of the child, would like to participate in this hearing and ask that the judge allow you either custody of the child or at least some visitation with the child. You contact your attorney at Guest & Gray, P.C. and discuss the issues with them.
In order to intervene and become a part of the court proceedings, you must establish standing. There are different ways to do so. A recent appellate opinion discussed the actual care, control and possession form of standing.
That is, a nonparent seeking to intervene in an already pending modification suit, as part of the standing requirements, must establish that they had actual care, control and possession of the child for at least 6 months and that couldn’t have ended more than 90 days before the petition to modify was filed. The question becomes what constitutes actual care, control and possession. In particular, what does “actual” mean for these types of court proceedings. While it may seem simple, this concept is quite convoluted.
In Smith v. Hawkins, the Houston 1st District Court of Appeals interpreted this to mean that a nonparent didn’t need to establish “exclusive” care, control, and possession in order to establish standing. In this particular case, the intervenor was an aunt of the child who lived with the child and the child’s grandmother. In the first proceeding, the child’s grandmother was named sole managing conservator of the child and the child’s parents were named possessory conservators. A few years later, the dad sought to modify this. During the time before the petition to modify was filed, the aunt lived with the child and grandmother and established at trial that she had provided for the child financially by paying for all of the child’s necessities, health insurance, and she paid for the mortgage on the home they lived in. She also spent so much time with the child that the child starting seeing her as the child’s mother.
Based upon this evidence, the court appointed the aunt and the grandmother joint managing conservators of the child, establishing that if a nonparent is seeking custody of a child, they can do so and be appointed joint with another non parent or even parent. Even though the grandmother was still in the child’s life, lived with the child, and was a caregiver for the child, the aunt was also part of the picture. And for this Court, this was enough to establish care, control, and possession of the child.
However, not all appellate courts have this same view. Again, going back to whether this is an original petition or a petition for modification, it all depends on the parental presumption. Meaning, with original petitions, there is a parental presumption that nonparents must overcome which makes the burdens much higher. In fact, the Corpus Christi Court of Appeals found in Gray v. Shook that a parent must directly do something to the child which causes significant physical or emotional harm to the child. Meaning, some specific, identifiable behavior or conduct of the parent which directly results in physical or emotional harm to the child. This is the more strict interpretation of what it takes for the nonparent to overcome the parental presumption in custody cases. However, remember that before you can even get to point in the case where you are allowed to argue your case, you must establish nonparent standing.
The issue of nonparent standing in original petitions is a contested issue among the courts right now. In particular, the Texas Supreme Court will soon be considering the issue of what it means for actual care, control, and possession to establish standing for a nonparent in original petitions. This is due to two recent conflicting opinions on this issue.
The first was by the Beaumont Court of Appeals which held that a grandmother who had lived with a child and the mother for 6 years could not establish standing to seek conservatorship, because the mother was still in the residence with the child and hadn’t given up all of her parental rights to the grandmother.
That is in direct contrast with a recent Dallas Court of Appeals opinion where the Court held that a grandmother who had possession of the child considered the equivalent of standard possession was enough to establish care, control, and possession for standing. This opinion is on review right now and thus, the Texas Supreme Court will hopefully step in and resolve the issue. It will be important and interesting to find out the Court’s decision on this matter and to see whether it will provide a bright line rule for this inconsistent grey area of the law.