Texas Family Code § 102.003(a)(9): Non-parent Standing

Prior to the Supreme Court of Texas Opinion in In the Interest of H.S., on June 15, 2018, many family law attorneys would have told you that in order for a non-parent to have standing under Texas Family Code § 102.003(a)(9), the person would have had to have had “exclusive” care, control, and possession, of a child for six months. That is, the person would have had to have care, control, and possession of the child without any help or interruption from the legal parent. This would mean that the child would be living with the non-parent and the non-parent would be making all decisions for the child. The court made clear in In the Interest of H.S., that section 102.003(a)(9) is broader than that and that there is no “exclusive” requirement.


Texas Family Code § 102.003(a)(9) and Standing


To fully understand section 102.003(a)(9) you have to first understand what standing is. Standing is basically the ability of a person to get in front of a judge in a case and request an order. If someone does not have standing, they don’t get to bring their case to court at all. It is very difficult for a non-parent to bring a case regarding a child under the Texas Family Code because of a United States Supreme Court Case and a strong parental presumption policy in Texas. Section 102.003(a)(9) of the Texas Family Code gives a non-parent a way to have standing. It says that a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition can have standing.


In the Interest of H.S.


The matter at issue in In the Interest of H.S.dealt with a child that had lived primarily with her grandmother for the required six month period under the statute while her mother visited her frequently and her father exercised possession sporadically. The grandparents sought to be named conservators of their grandchild and filed suit and claimed standing under Texas Family Code § 102.003(a)(9). The grandmother claimed that she had actual care, control, and possession of the child under the code in order to have standing. The trial court disagreed and on the motion of the father of the child, the trial court dismissed the grandmother from the suit. Upon dismissal, the grandparents appealed and ultimately ended up in the Supreme Court of Texas and were granted a favorable ruling.


What is Actual Care, Control, and Possession?


The Supreme Court of Texas ultimately concluded that a non-parent has “actual care, control, and possession of the child” under this section of law if, for six months, the non-parent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The court further found that the statute does not require the non-parent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.


What Does This Mean?


Basically, if a non-parent acts in a similar way to the grandmother in this case, they now have the ability to get before a judge and request to have legal rights related to a child. Before this, many courts, including the trial court in this case, would not have allowed the non-parent to even come before the court to be heard in these matters. The Supreme Court of Texas made clear that the non-parent would have to live with the child most of the time. Additionally, they would need some level of control over the child. The non-parent does not have to have final say on all matters related to the child, but in the case of the grandmother in this case, setting and taking a child to doctor’s appointments, directing the child’s day-to-day activities, and deciding when a child goes to bed, were all used to have the court decide that the grandmother had standing.


If you have any questions regarding grandparent or non-parent standing contact Guest and Gray today and schedule a free initial consultation to discuss your options in your case.

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