ATTENTION PARENTS!  The Texas Supreme Court recently delivered a split 5-4 opinion that is bound to raise eyebrows. The only issue presented is whether a nonparent, like a grandparent or step-parent, has standing under the Family Code to file a suit seeking custody of a child. But, the longstanding implications of this case might force parents to second-guess their decisions…especially when it comes to leaving their beloved babies with trustworthy individuals, like family, friends, or even nannies! This case is turning heads in the Texas family law community.

It’s important to note that this case is only about whether the nonparent has the right to file the suit. This case doesn’t address the standards for a nonparent to actually win the case at the conclusion. It is only about whether they have the right to bring the suit at all. Compare this difference to whether you have the right to open the door of the courthouse and walk inside versus whether you will win once you get there.

Based on the Court’s interpretation, the Family Code acknowledges that a limited group of nonparents—like grandparents or step-parents, who have operated in a parent-like role with regard to a child—may run to the courthouse and request preservation of that relationship over a parent’s objections.  In other words, nonparents who have operated in a parent-like role now have “standing,” or what is required for claims to be litigated and/or decided. For the first time, the courts have now acknowledged a doctrine of “in loco parentis” allowing someone who acts like a parent to have the right to override a parent’s constitutionally protected status.

The category of nonparents could be somewhat broad and include grandparents and step-parents as the obvious examples. This issue also has implications in same-sex relationships for the non-biological/non-adoptive parent of a same-sex couple. I’ve even seen this come up where a nanny tried to sue for custody by alleging the right to file suit under this heading.

Particularly, the Court held that under section 102.003(a)(9), a nonparent has “actual care, control, and possession of the child” if the nonparent operated in a parent-like role for at least six months by (1) sharing a principal residence with the child, (2) supporting the child’s regular physical and psychological needs, and (3) showing guidance, governance, and direction similar to that characteristically exerted on an everyday basis by parents with their offspring.  Interestingly, “the statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parent rights and responsibilities.”  Consider the facts of this case for further understanding:

Mother and Baby moved into Grandparents’ house.  Mother struggled with alcohol addiction and decided to temporarily seek help.  With Grandparents’ consent, Mother left Baby whilst she moved into a sober-living facility.  When Mother was away, Grandparents managed Baby’s day-to-day activities.  However, Mother only intended to be away for three months and routinely visited over the weekends to care for Baby.  Mother never intended to relinquish parental rights by letting Baby stay with Grandparents.  Nonetheless, Grandparents’ “actual care, control, and possession” of Baby for a period of six months gives them standing to modify a SAPCR order.  Raise any red flags?

A red flag was definitely raised for the dissent, filed by Justice Blacklock.  According to the dissent, the result of this case is that “parents who remain in control of their children’s lives can be forced into visitation and custody fights over their own children by any nonparent whose relationship with the child triggers the Court’s malleable ‘parent-like role’ standard.”  Indeed, once a case gets through those courthouse doors, a judge or several judges—not the parents—will inevitably determine whether or not to uphold the parents’ choices about their child’s future.  The dissent goes on to say that no one can fully stand in a parent’s shoes unless that parent steps out of those shoes and walks away first.

What do you think?  Based on the facts above, did Mom step out of her parental and walk away first?  We will soon find out, as the case was remanded to the trial court to determine the merits of the Grandparents’ petition.


This blog post was written by Saira Ukani, our summer law clerk intern out of University of Texas Law School. We appreciate her!

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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.