iStock-902725964-scaledIn Texas custody cases, it can be very difficult for a non-parent to obtain custody or visitation of a child over the objection of a parent.  In some circumstances, however, a non-parent (such as a grandparent) has the right to file suit seeking custody or visitation.  One such circumstance is when the person has recently had care, custody, and control of the child for at least six months.

In a recent case, a grandmother sought custody of her son’s child after her son’s death.  According to the appeals court’s opinion, the child was born in 2014.  From 2014 to 2020, the child and parents lived in various places, including the paternal grandmother’s home in Wilson County.  From 2017 to 2019, the child went to daycare in Wilson County.  From August 2019 to January 22, 2020, the parents and child lived with the paternal grandmother.

Father Passes Away – Grandmother Files for Custody

Sadly the father died in late January 2020, while they were living in an apartment.  The mother then moved in with her own parents and enrolled the child in school nearby.

The paternal grandmother filed for sole managing conservatorship of the child in February 2020, alleging that she had standing under Tex. Fam. Code § 102.004. She claimed the child lived with her “for the majority of his life. . .”  She provided an affidavit stating that the parents and child moved in with her in late 2014 and that the child lived with her “most of his life.” She sought immediate possession of the child, and the court granted it.  A constable removed the child from school and brought him to the grandmother.

The mother filed a plea to jurisdiction and argued that the grandmother did not have standing.  The court held a hearing and heard from 14 witnesses.  Three witnesses testified the grandmother had been the child’s primary caregiver and he had primarily lived in her home before the death of his father.

The parties and the court discussed whether the grandmother had standing under Tex. Fam. Code § 102.003(a)(9).  The mother argued the grandmother had not alleged standing under that section. The grandmother argued her affidavit was incorporated into her petition and the affidavit stated she had raised the child from 2017 until 2020.

The trial court ultimately found the grandmother had not met the burden of proof to show standing under either section and dismissed the petition. The grandmother appealed.

Grandmother Appeals Dismissal of Her Suit

The grandmother argued the trial court erred in finding she did not have standing under § 102.003(a)(9).  This section allows someone who “had actual care, control, and possession of the child for at least six months” ending within the 90 days before the petition was filed to file a suit affecting the parent-child relationship.

To show “actual care, control, and possession,” the non-parent (i.e., the grandmother) does not have to show that the parents completely gave up their own rights and responsibilities or that they had legal authority over the child.  The non-parent can prove care, control, and possession by showing they had a parent-like role and shared a home with the child, provided for the child’s daily needs, and provided the type of guidance and direction that a parent would.

Appellate Court Disagrees with Trial Court

The appeals court found the allegations in the grandmother’s petition and supporting affidavit, when taken as true, addressed each element required by § 102.003(a)(9).  The appeals court further found the allegations were sufficient to give the mother notice of the issues in controversy.  The appeals court found the pleadings were sufficient for the grandmother to assert § 102.003(a)(9) standing.

The trial court found the grandmother had not shown the child was in her care, custody, or control for six months, ending not more than 90 days before her petition was filed.  The appeals court noted, however, that the evidence presented at least raised a question of fact regarding the issue.  Witnesses testified the child had primarily lived in the grandmother’s home before his father died.  The appeals court found the evidence raised a question as to whether the grandmother and child shared a principal residence.  The mother argued there was evidence the grandmother’s “alleged possession of the child was always interrupted,” but the time does not have to be uninterrupted under the statute.

A daycare owner testified the child was enrolled from August 2017 until April 2019 and the grandmother was the primary contact.  The grandmother testified she had been the one who provided care for the child, including feeding him, bathing him, taking him to the doctor, enrolling him in daycare, and driving him to and from school. The grandmother’s daughter testified that she and the grandmother bathed the child, prepared his dinner, and helped with his homework. The grandmother’s daughter-in-law testified that the grandmother was the child’s primary caregiver, even when the mother was there.  The appeals court found the evidence raised a question of whether the grandmother exercised guidance and direction over the child and provided for his daily needs.

The mother argued the trial court found the grandmother’s testimony was not credible.  The appeals court noted that the case was at the plea to jurisdiction stage, and the grandmother only had to create a question of fact as to the jurisdictional issue.

The appeals court reversed the trial court’s dismissal of the grandmother’s suit and remanded.

Are You Seeking Custody as a Non-Parent? Call McClure Law Group Today

If you are a grandparent or other non-parent seeking custody or visitation, you should contact an experienced Texas custody attorney right away.  Call McClure Law Group at 214.692.8200.