Standing is a complex yet necessary element in your Texas Family Law case. In today’s blog post from the Law Office of Bryan Fagan, we will discuss standing from your perspective as a prospective client of our office. Whether you are a grandparent, uncle, aunt, friend, or other adult, your role in the life of a child is essential. To that end, if you want to explore visitation, custody, or adoption then knowledge of standing is necessary. However, not every adult in the life of a child will have standing. Here is what you need to know before your family law case.
Defining standing on a practical level
For a court to have jurisdiction over your case, you as a petitioner or interested party must have standing before that court. You must have suffered an “injury” in the technical, legal sense. As a result, a remedy under the law must be made available to you by the filing of a family law case. Standing allows you the opportunity to present an argument to a court to address a problem that you have experienced related to a child or other family law matter. It is not a guarantee of a future result. Rather, it is an acknowledgment that you have the right to hear arguments by a court.
Presumptions in favor of parents
When filing an original Suit Affecting the Parent-Child Relationship (SAPCR), there is a parental presumption applied. This presumption states that the best interest of your child is served by awarding custody to the parents. For a non-parent to be successful in an original child custody lawsuit that presumption must be rebutted. As in, the appointment of the parent would significantly impair the child’s health or development. An alternative to this would be to show that a parent has voluntarily given up custody or possession of the child.
The same standard does not apply to modification cases. There is no parental presumption in favor of parents as applied to a modification case. Modification cases are those where a conservator of the child attempts to modify or change child custody orders based on a material or substantial change in circumstances. As it pertains to nonparents, in a modification case a non-parent does not have to rebut the parental presumption. There is no standing obstacle when it comes to a modification case.
Standing for grandparents in Texas family law cases
One of the most common questions that the Law Office of Bryan Fagan receives regarding standing has to do with grandparents. Grandparents have a major role in the lives of their grandchildren and many families. More and more frequently have attorneys seen grandparents seek visitation or conservatorship rights concerning their grandchildren in recent years. With that said, let’s spend some time discussing how standing for grandparents is treated in Texas child custody cases.
Like any other non-parent, grandparents do not have unlimited opportunities for standing in an original child custody case. An immediate relative of your child potentially has standing to bring an original child custody case. Or, if your child has no living parent standing would be conferred. Finally, if you as a grandparent have had actual care, control, and possession of your grandchild for at least six months within the filing of your petition then standing is also conferred. These are the basic circumstances under which you as a grandparent may file an original child custody suit.
You as a grandparent must show that you have exercised care and control over your grandchild continuously for at least six months before your lawsuit is filed. Additionally, that six-month period must not be any longer than 90 days before the lawsuit is filed. Additionally, your grandchild’s parents must not have resided with you or performed any care during those six month.
Alternative pathways to standing for a grandparent
The above circumstances outline the most typical situations under which you as a grandparent may gain standing in a custody case. However, the Texas Family Code outlines alternative methods to obtain standing. One of the more common ways in the alternative to gain standing in a child custody case would be to show that your grandchild’s physical health or emotional stability would be impaired if he or she were to remain with his or her parents. Do your grandchild’s current living circumstances present a major risk to their physical health or welfare? If so, then you may be able to file successfully in the original child custody lawsuit.
Case law in Texas is clear that your grandchild needs to be in imminent danger of physical or emotional harm to qualify under this standard. This means having evidence ready to present to a family court judge that will show there is a major risk to the child’s physical health or welfare. This is not easy to do. Not only do you have to have evidence to support your allegations but there must be serious circumstances in play to begin with. Examples would be evidence showing that your grandchild’s parents are unable to properly supervise your grandchild or to show that the home is extremely unsanitary.
Setting yourself up for success in a child custody case is a challenge. The attorneys with the Law Office of Bryan Fagan help prepare clients for such a case. Our attorneys can sit down with you to determine whether you likely have standing to begin with. From there, we can help guide you as far as preparing your case and presenting evidence to a judge.
How close must your relationship be with your grandchild?
One of the major questions that grandparents tend to ask is whether their relationship with their grandchild must be incredibly close. The idea is that if a grandparent does not have a close relationship with their grandchild, then standing cannot be one. Preventing some grandparents from seeing their grandchildren is what certain parents do.
So long as you can show that your child’s physical health or well-being may be significantly impaired then the closeness of your relationship will not matter. You are a biological grandparent which would provide you with standing sufficient to file a child custody lawsuit. It is important to bear in mind that there are several factors at play here simultaneously. Even in the best of circumstances, grandparents do not have a straightforward way to gain standing. Presenting evidence to a court showing why standing is proper in your situation is first step in a custody case.
Again, this is certainly a circumstance where having an experienced family law attorney matters a great deal. A family court judge puts your family life under a microscope. It is not the case that a family court judge will presume that you have standing to file an original child custody lawsuit. Rather, the opposite is true. Judges are skeptical of a grandparent’s ability to show proof that they have standing in a case involving their grandchildren. This is something worth preparing for as far as showing a judge that you do have the necessary standing to proceed.
Intervening into an existing child custody lawsuit
Suppose that you are in a situation where you do not want to become the primary conservator of your grandchild. The primary conservator of your grandchild is the primary caretaker with whom your grandchild lives daily. The responsibilities of a primary caretaker are different of a possessory conservator. This is the caretaker of a child with whom the child does not live primarily with. In child support terms this is the distinction between a custodial and non-custodial parent.
As a grandparent, you may only become a possessory conservator of your grandchild by intervening in an existing child custody lawsuit. Courts allow for grandparents to intervene in an existing custody case more easily than filing an original lawsuit. The reason is that the courts acknowledge that a child in a pre-existing custody case already has a degree of disruption in their lives. By intervening in a case as a grandparent you give the court more options to suit the best interests of your grandchild.
Bearing this in mind, it is still not the case that you can intervene in any kind of custody case that you would like. Indeed, you must show that there is a significant impairment of your grandchild’s physical health or emotional development that is pre-existing. If you can show this then you would be able to intervene in a pre-existing child custody case.
Standing for siblings of a child
If you are the adult sibling to a child who wants to seek conservatorship rights, then there are separate standing requirements for you to bear in mind. Having had actual care, control, and possession of the child for at least six months no more than 90 days preceding the filing of the petition can qualify for standing. These are both circumstances in which you as a sibling would be able to file an original lawsuit for child custody as a managing conservator.
To gain standing as a possessory conservator you would need to intervene in a pre-existing child custody lawsuit. Substantial past contact with the child is necessary. A court would grant you leave to intervene in a pending lawsuit filed by another person. Show the court proof that appointing one of the child’s parents as a sole managing conservator or both parents as joint managing conservators would significantly impair your child’s physical health or emotional development.
Standing for other relatives of a child
If you are an uncle, aunt, or other relative of a child there are ways for you to gain standing in a child custody suit, as well. Additionally, even if that child has at least one parent who is alive you may gain standing if the parent consents to you filing an original child custody lawsuit. Finally, if the child’s present circumstances would significantly impair the child’s physical health or emotional development that is another circumstance where you would be able to file a child custody lawsuit.
Please note that to gain standing you would not need to show that your child is in immediate danger. Things like an alcohol or drug addiction by one of the child’s parents may be sufficient to show that living with him or her would pose a significant rest to your child’s physical health or emotional development. In short, the court would need to look at the totality of the circumstances when assessing whether standing is appropriate for you.
What about standing as a stepparent?
Even stepparents may gain standing to file an original child custody lawsuit. If you are a stepparent who has resided with the child then you would gain standing if the child’s biological parent has passed away. The same requirement that we have seen multiple times already in today’s blog posts would need to be true. Namely, that you and the deceased conservator resided with the child for at least six months no more than 90 days before the filing of the lawsuit.
What about standing as a non-relative?
In general, a non-relative of a child needs to show that he has had substantial past contact with the child. The tricky part about this is that there are no cases from Texas appeals courts that have defined substantial past contact. This is a situation where a court would likely assess the circumstances on a case-by-case basis. If you have a child in your life whose circumstances you are concerned for then you need to have your ducks in a row as far as evidence is concerned. There are cases in Texas where courts have extended-standing to neighbors of a child.
It is difficult to assess and make general statements about a non-relative gaining standing sufficient to file a child custody case in Texas. What does substantial past contact mean in your situation? What if you are the next-door neighbor to a child whose parents split up and the father lives two states away? The child has lived with you over the past five months while the mother received inpatient psychiatric care. To date, the father expressed no interest in the child. He has paid no child support or otherwise tried to contact the child.
However, now he has shown up on your doorstep and has attempted to retrieve the child. If you want to continue to be the primary conservator of this child, then filing an original child custody lawsuit may be your best opportunity to do that. Showing the court that naming the father as the primary conservator would harm the child’s emotional health and development is reasonable. This is because he has been out of the child’s life for many years.
The importance of a family law attorney when attempting to gain standing as a non-parent
As you can see, it is certainly possible for a non-parent to gain standing in a Texas child custody case. Even though there aren’t challenges associated with the process it is far from impossible for a relative or non-relative alike to eventually gain custody of a child. However, there are potential hurdles and issues to bear in mind as you plan for this type of case. It is normal to have more questions than answers during this type of case.
The bottom line is that you need to be able to find answers to those questions sooner rather than later. The more quickly you can answer your questions the better prepared you will be for a complex child custody case. Being well organized and seeking experienced attorneys to assist you would be a reasonable goal for you to have at this point in the case. Fortunately for you, by reading this blog post you have come across a basic amount of information to assist you in your journey.
With that said, do not stop here. Reach out to the attorneys with the Law Office of Bryan Fagan. We are ready and willing to answer any question you have because of having read this blog post. The Law Office of Bryan Fagan is on your side.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
