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.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.