In the world of family law, standing is a concept that is involved with most every sort of case that goes before a court. A court has no authority to decide your case if you and/or the other party do not have standing to appear. If a court determines that you have standing to present an issue, that does not mean that you will automatically win your case. All it means is that you have a right to argue your case in front of that court and have the judge issue a decision.
If you have filed an original lawsuit (the first lawsuit filed in any family law case) the courts in Texas will use a parental presumption rule. This means that the court will presume that the best interests of the child in your case are served by awarding custody to a parent of that child. If you are a nonparent who is attempting to win custody of a child you will need to overcome that parental presumption. To do so, you would need to show that appointing that parent to be the primary caretaker of the child would significantly impair the child’s health or development or that the parent voluntarily relinquished the child.
However, this burden does not apply to cases where all you want to do is bring a child custody lawsuit on behalf of a child and against the parent of that child. Within the standing requirement itself on an original lawsuit there is no parental presumption that plays any role.
Now that we have provided you all with a general overview of standing and its role within a family law case, let’s discuss how standing can impact you depending on your relationship to the subject children.
Standing as a grandparent in a family law case
In recent years, as the dynamics of families have ben changing dramatically, the rights of grandparents have taken on particular importance. Grandparents can either seek court ordered and protected visitation with their grandchildren or can receive conservatorship rights over their grandchildren in other situations. Let’s get into how either of these situations work in connection with the standing issue we have already been discussing.
It goes without saying that grandparents are not parents and therefore have limited opportunities to file custody lawsuits. Relatives of a child who are immediate family members (grandparents count as such) do have standing to bring child custody and conservatorship lawsuits. The other situation where I see grandparents having standing most readily are ones that involve a grandparent who has actual control and possession of a child for at least six months not ending more than ninety days prior to the filing of the lawsuit. These are among the more straightforward ways to gain standing on a child custody case if you are a grandparent.
Let’s take a hypothetical situation to illustrate a point about standing and grandparents in Texas. Suppose that you are a grandparent who has been caring for your grandchild since the death of your daughter (the child’s mother). Your grandchild had been living with you since he was born. On the other side of your case is the child’s father who is arguing that despite your meeting the control requirements, the presumption in favor of parents would still apply. What is your move at this point?
Assuming that you can overcome any standing issues, and here it looks like you would be able to, the next step would be to show the court that appointing the child’s father as the primary conservator would significantly impair your grandchild’s physical health or emotional development. Serious questions would need to be in play regarding your grandchild’s physical health or welfare in order to meet this requirement. What degree of immediate danger would your child be facing?
You, as a grandparent, would need to have evidence ready to show that your grandchild faces an imminent danger of physical or emotional harm for there to be a serious risk of harm to your grandchild’s physical health or well-being. The bottom line is that if you are a grandparent seeking custody of your grandchild you have a heavy burden to bear in order to win your case.
What would be an example of a situation where grandparents did not have standing to proceed on a child custody lawsuit?
The key to winning a standing argument based is that naming a parent as a primary conservator would pose a significant impairment to their physical health or emotional development. Merely restricting visitation with you is not enough cause to meet this burden. So, even if you and your grandchildren are very close that alone is not enough to argue that your grandchildren will suffer mental or physical harm due to that relationship being affected by a decision of the parents.
What happens if you want custody of your grandchildren but not primary custody?
Th law in Texas holds that you as a grandparent may file an original lawsuit where you are asking the court to name you as a managing conservator of your grandchild. This means that you would have the primary responsibility of caring for your grandchild- having him or her live with you, ensuring that he or she goes to school, etc.
On the other hand, you may not file an original lawsuit where you are asking the court to name you as a possessory conservator. A possessory conservator has the right to make decisions for a child but is not in charge of the daily responsibility of raising the child. However, in a pending child custody case you may seek to intervene into the previously filed lawsuit in order to be named as a possessory conservator. In order to successfully intervene into a lawsuit, you must show a trial court judge that there is a significant impairment of your grandchild’s physical health or emotional development.
Standing issues related to siblings attempting to win primary conservatorship of a child
If you are an adult sibling of a child and wish to bring a lawsuit asking for conservatorship rights over a child you may do so as long as you meet one of the standing requirements listed below.
-if you are 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 custody petition
-if you are a person with whom the child and the child’s guardian, managing conservator, or parent have resided with for at least 6 months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition
-if you are a person who is a close relative (uncle, aunt, first or second cousin, grandparent, brother or sister) and there is proof that thee order that you are requesting is necessary because your sibling’s present circumstances would significantly impair their physical health or emotional development or your lawsuit has been consented to by your sibling’s parents, managing conservator or surviving parent.
Standing issues related to siblings attempting to win possessory conservatorship of a child
If you are an adult sibling to a child and are interested in being awarded possessory conservatorship of that child you may do so by intervening into a previously filed Suit Affecting the Parent Child Relationship. The court would need to determine that you have had substantial past contact with the child in order to allow you to intervene into the case. The other circumstance that must be in play would that appointing a parent as the sole managing conservator of the child or both parents as joint managing conservators of the child would significantly impair the child’s physical health or emotional development.
What if you are an adult sibling to a child and just want to have access to him or her?
It could be that you are not interested in gaining a conservator relationship with your minor sibling. You may only want to be able to see, spend time with and build a relationship with that child. If you find yourself in this position then you should pay close attention to this section of today’s blog post. This applies also to siblings who lost access to one of their siblings through a Child Protective Services (CPS) investigation.
The Texas Family Code tells us that the sibling of a child may file an original suit requesting access to the child as long as you are at least 18 years old. If you have been separated from this child because the Department of Family and Protective Services (DFPS) then you can file an original lawsuit to gain access to the child or can file a modification lawsuit that seeks to modify the terms related to access. All in all, if a judge finds it to be in the best interests of your sibling to grant you access to him or her then the court will allow you to do so.
One last point that I wanted to make in regard to siblings gaining access/conservatorship rights to their other siblings is that it is unclear whether or not a minor child may file a lawsuit (with thee assistance of a parent or guardian) that seeks to gain access to one of their siblings. There are parts of the Texas Family Code that require that siblings requesting access to a brother or sister be at least 18 years old. Standing may depend on the age that the sibling is. Since this appears to be an unsettled area of the law, you should check with a family law attorney experienced in sibling access cases before moving forward with a lawsuit.
A story about two grandparents and their grandchildren that should give you hope
If you are a grandparent and have been reading through today’s blog post to see if you can gain a glimmer of hope when it comes to seeing your grandchildren, I have a story to tell you. Many times grandparents are denied access to their grandkids by the kids’ parents. This can be a heartbreakingly difficult situation to have to go through, especially if you and your grandkids were close.
Our office represented two grandparents a couple years ago that found themselves in this exact situation. Their son was in jail and their daughter in law was not allowing them to see their grandchildren. The grandparents went from seeing the kids on a regular basis to not even being able to talk to them on the phone. They would come down to Houston to see if they could visit with the kids but were denied access repeatedly by the mother’s family.
On top of all of this, the mother was facing criminal charges and was very likely to spend a significant amount of time in jail when our office first began representing these folks. The goal of the grandparents was to gain a managing conservatorship over the grandkids. We explained that this would be a noble goal to have, but that it may prove difficult to accomplish. What we ended up doing for these grandparents in mediation was to negotiate for a possession and access order. These grandparents were given more time with the grandkids than they had in years- even some around the holidays.
The mother eventually did get sentenced to a term in prison. However, prior to going in she agreed to allow the grandparents to be named as managing conservators of the grandkids. Mother and father were named possessory conservators and the kids moved in with the grandparents and they are all doing well.
The point of me telling you this story is that even if it takes some time and even if the odds do not appear in your favor, you can gain a great deal just by stepping up and doing what is right for young children in your family. The love that these grandparents had for their grandkids coupled with the assistance of experienced attorneys made all the difference.
Questions about issues regarding standing in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations are a great opportunity to learn more about family law and to have your questions answered directly by an experienced family law attorney.