Grandparents, and Others, Get a Boost in Potential Custody Fights
The recent Texas Supreme Court decision in In the Interest of H.S., A Minor Child (No. 16-0715) should give third parties, including grandparents, better footing in custody cases.
Does actual possession of the child matter?Yes. Under Texas Family Code Section 102.003(a)(9), if certain individuals have actual possession of the child for a period of 6 months or longer, they have standing to file suit to gain custody of the child.
What does STANDING entail?The Texas Supreme Court ruled that "standing involves a threshold determination of whether a plaintiff has a sufficient 'justiciable interest' in the suit's outcome to be entitled to a judicial determination." Austin Nursing Ctr. v. Lovato, 171 S.W. 3d 845, 848-9 (Tex. 2005). If there is no standing, then the Court fails to have subject matter jurisdiction over the case, and the merits of the plaintiff's claims cannot be litigated. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). In the H.S. case, the validity of the Grandparents' claims -- in other words, whether they should be appointed as their grand daughter's managing conservators, with the exclusive right to establish her primary residence, had not yet been considered. The Texas Supreme Court ruled that "this case is not about whether Grandparents will prevail in their suit; it is about whether they may bring their suit in the first place." If the Grandparents lacked standing, they not only could not fight for custody, they lacked the right to fight for access to the child made the subject of the litigation. In considering the issue of standing, the trial court is admonished to consider the child's residence during the relevant time. Texas Family Code Section 102.003(b). The Texas Supreme Court concludes that "actual control" alludes to who has the "actual power or authority to guide or manage or the actual directing or restricting of the child," "without regard to whether [the nonparent] had the legal or constructive power or authority to do so." Jasek v. Tex. Dep't of Family & Protective Servs., 348 SW3d, 523, 535 (Tex. App. -Austin 2011, no pet.) Under the Jasek ruling, "actual control" should be construed as words that "reflect the Legislature's intent to create standing for those who have, over time, developed and maintained a relationship with a child entailing the actual exercise of guidance, governance and direction similar to that typically exercised by parents with their children." 348 S.W. 3d at 533.
Coons-Anderson v Anderson, 104 S.W.3d 630, 636 (Tex. App. -- Dallas 2003, no pet)In Coons-Anderson, the Texas Court of Appeals in Dallas noted that "section 102.003(a)(9) is in complete harmony with the common law doctrine of in loco parentis: a person who assumes the duties of a parent . . .has the right to be a party in a lawsuit involving the child's custody." The statute by its plain terms places its focus on the nonparent's role in the child's life -- which makes sense due to the relationship that develops over the course of time between a child and a person who insinuates and serves in a parent-like role; to wit: an individual "who has actual care, control and possession of the child."