Can a Non-Parent Pursue Custody?

Recent Texas Supreme Court Ruling and Its Effect on Non-Parent Standing in Custody Matters

The Texas Supreme Court has recently issued a ruling resolving a highly-contested custody issue regarding standing of non-parents to pursue custody of minor children.

The ruling focused on Texas Family Code Section 102.003(a)(9), which does not require that a non-parent have exclusive control over a child to pursue custody. In the case of In Re H.S., the Court held that a non-parent can pursue custody if specific circumstances are met. In re H.S., NO. 16-0715 (Tex. Jun. 15, 2018).

The non-parent must meet these 3 standards:

  1. shares a principal residence with the child;
  2. provides for the child’s daily physical and psychological needs; and
  3. the non-parent exercises “guidance, governance and direction similar to that typically exercised on a day-to-day basis by parents with their children,”

If the non-parent meets all these standards, the court may rule that the non-parent has standing to bring a lawsuit for custody of the minor child.

In the ruling, the Court also stated that the non-parent will have standing to sue for custody even if he or she does not have the ultimate legal authority to control the child. The standing requirement also does not require the parents to have signed over or relinquished their parental rights and responsibilities.

This ruling is significant as it means the non-parent has standing to pursue custody without having to be appointed or designated temporary guardian over the child previously. The parents can be living in the same home as the non-parent, such as a grandparent, who believes he or she is regularly taking care of the day-to-day needs of the child and exercises similar parental control over the child. That grandparent, without being appointed as a legal guardian for that child, can sue for custody of that child.

In the ruling, the majority focuses on the phrase “actual care, control and possession” and attempted to define what the legislature meant when inserting this language into the statute.

The majority claimed that the legislature did not write this language to mean that the non-parents need to have exclusive care and control of the child without any assistance of the child’s parents. This definition means the non-parent can have shared control with the child’s parent or simply have some control over the child’s care.

Opponents to the ruling argued that exclusive control is necessary and is the point behind the word “control.” To those who dissent with the court’s opinion, the word control in and of itself means that the one person has the “power of authority to manage, direct and oversee” the child’s care and well-being. Otherwise, a babysitter would be able to argue that he or she has control over the child if he or she occasionally will care for the child with the assistance of other individuals.

In past years, parents were afforded a parental presumption which gave a legal assumption that appointing the parents as managing conservators for a minor child is what is in the child’s best interests. The parental presumption could be rebutted if it could be shown that appointing the parent as the child’s conservator would significantly impair the child’s physical health or emotional development.

The court’s majority, in its opinion, pointed out that the court’s ruling does not eliminate or change this parental presumption, with a couple of exceptions.

For the most part, the parental presumption does not apply in modification matters. The dissent pointed out that while the parental presumption does protect the rights of parents, it does not change the fact that once another individual is given standing to pursue custody, it is still up to the court, not the child’s parents, to decide what is in the child’s best interest. They argued that this new ruling makes the parental presumption somewhat weaker.

Critics of this decision worry about what the consequences will be of the court’s ruling. It arguably opens up the doors for third-parties to pursue custody of minor children. It also could force parents to have to defend themselves in these custody matters.

Many times, the third-party pursuing custody is the child’s grandparent, who often has deeper pockets and more extensive financial resources than the parents. Custody cases can get expensive, and if the other side has the money to pursue the case and the parents do not have the money to fight it, the scales will likely tip in the favor of the third-party.

Contact A Custody Lawyer Today

If you have questions about non-parent custody whether it be pursuing non-parent custody or defending against a petition for non-parent custody, please contact family lawyers at Scott M. Brown and Associates. You can reach us by calling (979) 318-3075 or completing our online form. We have offices in Angleton, Webster/Clear Lake, and Pearland.

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