Joe and Sue are down on their luck. Joe just lost his job and Sue has health issues. Along with their four-year-old child, Betsy, they move in with Joe’s parents, who are retired. For months, Joe interviews all over town while working odd-jobs to try to supplement his family income and pay for Sue’s medical bills. Due to Sue’s ailments, Grandma cooks for Betsy and Sue every day, while Grandpa takes Betsy to doctor’s appointments and day care. Six months go by and Joe finally lands the dream job he was hoping for. Joe and Sue start packing up their stuff to move with Betsy into their new home and all of the sudden, a stranger walks up and hands them some papers. Joe takes a look and his face turns ghostly white. His parents, sweet old Grandma and Grandpa, just filed suit to try to gain custody of Betsy. Guess what? The Texas Supreme Court just told the grandparents, “You may not win, but you can sure try.”

The Texas Supreme Court recently resolved a highly debated issue regarding non-parent standing when it determined that Texas Family Code Section 102.003(a)(9) does not require that a non-parent have exclusive control of the child. See In re H.S. ___ S.W.3d ____ (Tex. 2018).  Rather, the Court held that if the non-parent (1) shares a principal residence with the child, (2) provides for the child’s daily physical and psychological needs, and (3) exercises guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children, that individual has standing to bring a lawsuit.

The Court specified that a non-parent may have standing regardless of whether the nonparent to has ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.

I do not agree. Two’s company, three is a crowd.

For starters, the majority focuses on defining “actual care, control, and possession,” claiming that the Legislature did not intend for the nonparent’s care and control to be exclusive. The majority reasons that this would add a requirement that was not there. However, that’s the entire point of having “control”- one person has the “power or authority to manage, direct, and oversee.” If multiple people are exercising control, that goes against the very essence of the definition.

Another issue is the parental presumption that parents are afforded, stating that the presumption that appointing the parents as managing conservators is in the child’s best interest unless the appointment would significantly impair the child’s physical health or emotional development. The majority accurately points out that this ruling does not affect that presumption, however there are two caveats to this.

First, the parent presumption does not apply in modification cases. See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). Secondly, as the dissent accurately points out, “although this presumption affords important protection to parents, it does not change the fact that once standing is established, the final decision about the child’s future will be made by a judge or jury, not the child’s parents.” Thus, this decision indirectly waters down the parental presumption by forcing parents to fight these outsiders.

In conclusion, this ruling will have immense consequences. It forces parents to defend cases against third parties they should not have to defend. In many situations, it is likely the third party- especially a grandparent- will have more financial resources, which unfortunately makes a difference in custody battles. If the courtroom wasn’t crowded before, it is now about to be.