In order to bring a suit seeking conservatorship or visitation of a child, the Texas Family Code requires individuals to have standing to file a Suit Affecting the Parent-Child Relationship (“SAPCR”). Tex. Fam. Code Ann. § 102.003 (West). On June 15, 2018, the Texas Supreme Court resolved a hotly contested issue regarding when a nonparent has standing under Texas Family Code Section 102.003(9). In Interest of H.S., 550 S.W.3d 151 (Tex. 2018).
Nonparents who have had “actual care, control, and possession of the child for at least six months” qualify for standing under this statute. Additionally, during this six month period the nonparent must have shared a principal residence with the child. In determining exactly who this statute applies to, the Court examined the plain meaning of “actual care” and “actual control.”
In family law cases, the word “care” means the “provision of physical or psychological comfort to another.” As such, a nonparent is taking, “actual care” of a child when he or she takes daily responsibility for ensuring that the child is fed, clothed, and emotionally nurtured. In In re H.S., the fact that the child’s grandparents paid for her food, clothes, and daycare indicated they were the child’s primary caregivers, and therefore were taking actual care of their grandchild.
The word “control” is commonly defined as “the power or authority to manage, direct, or oversee.” Therefore, a nonparent is exercising “actual control” over a child when he or she consistently makes the kinds of day-to-day decisions associated with raising a child. These kinds of decisions include when the child gets up and goes to bed, how much television the child watches, whether the child gets dessert, and when the child needs to go to the doctor.
The statute does not require the nonparent to have ultimate legal authority to control the child. There is also no requirement that the child’s parents need to have wholly ceded or relinquished their own parental rights and responsibilities. This is because the statute focuses on the nonparent’s role in the child’s life, rather than the actions and conduct of the child’s parents.
In short, a nonparent has standing under the Family Code to file a SAPCR seeking conservatorship of a child if, for the requisite six-month time period, the nonparent 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’s decision to employ this new standard will simplify the process for determining whether or not someone can bring this type of suit. This interpretation of the Family Code’s standing statute will help individuals other than a child’s parents to get a foot in the door and have a chance at their day in court.
Written by: Jordan Williams