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!