Standing: Do I Have The Legal Right To Sue For A Child?

child-parent

In any lawsuit, particularly lawsuits involving children, the issue of standing is a crucial determination in deciding whether a party has the legal right to bring that suit. If you don’t have standing or the right to bring your lawsuit, your case might be dismissed at the trial court or even at the appellate level. If you are a grandparent, do you have the right to sue mom or dad over custody of a child? If you are a stepparent, do you have the right to sue your ex-partner or even the other parent of the child for the right to visitation? If you have had another person’s child in your possession for long periods of time, do you have the right to sue the parents for custody and child support? The answer is very important to your success in bringing your case before the Court.

The formal definition of standing is the right of people to challenge the conduct of another person in a court. In less technical terms, I often tell my clients that standing is the right to stick your nose in other people’s business. Texas has codified general standing to bring a suit regarding conservatorship in Texas Family Code Section 102.003. (Sidenote: Should you ever want to read the most current version of any Texas statute for yourself, our state codes are viewable online at statutes.capitol.texas.gov. Please be advised that our Texas legislature meets every two years, and many statutes are created, modified, amended, or eliminated, depending on the actions of our state Congress.)

The text of Section 102.003 (as of the date of this publication) reads as follows:

“Sec. 102.003.  GENERAL STANDING TO FILE SUIT.  (a)  An original suit may be filed at any time by:

(1)  a parent of the child;

(2)  the child through a representative authorized by the court;

(3)  a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;

(4)  a guardian of the person or of the estate of the child;

(5)  a governmental entity;

(6)  the Department of Family and Protective Services;

(7)  a licensed child placing agency;

(8)  a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise;

(9)  a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;

(10)  a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162;

(11)  a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition;

(12)  a person who is the foster parent of a child placed by the Department of Family and Protective Services in the person’s home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition;

(13)  a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child’s parents are deceased at the time of the filing of the petition;

(14)  a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Section 102.0035, regardless of whether the child has been born; or

(15)  subject to Subsection (d), a person who is an intended parent of a child or unborn child under a gestational agreement that complies with the requirements of Section 160.754.

(b)  In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the court may not require that the time be continuous and uninterrupted but shall consider the child’s principal residence during the relevant time preceding the date of commencement of the suit.

(c)  Notwithstanding the time requirements of Subsection (a)(12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child.  The standing to file suit under this subsection applies only to the adoption of a child who is eligible to be adopted.

(d)  A person described by Subsection (a)(15) has standing to file an original suit only if:

(1)  the person is filing an original suit jointly with the other intended parent under the gestational agreement; or

(2)  the person is filing an original suit against the other intended parent under the gestational agreement.”

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1995, 74th Leg., ch. 751, Sec. 8, eff. Sept. 1, 1995;  Acts 1997, 75th Leg., ch. 575, Sec. 3, eff. Sept. 1, 1997;  Acts 1999, 76th Leg., ch. 1048, Sec. 1, eff. June 18, 1999;  Acts 1999, 76th Leg., ch. 1390, Sec. 2, eff. Sept. 1, 1999;  Acts 2001, 77th Leg., ch. 821, Sec. 2.07, eff. June 14, 2001;  Acts 2003, 78th Leg., ch. 37, Sec. 1, eff. Sept. 1, 2003;  Acts 2003, 78th Leg., ch. 573, Sec. 1, eff. Sept. 1, 2003.  Amended by:  Acts 2011, 82nd Leg., R.S., Ch. 110 (H.B. 841), Sec. 10, eff. May 21, 2011. Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 1.029, eff. April 2, 2015. Acts 2019, 86th Leg., R.S., Ch. 130 (H.B. 1689), Sec. 2, eff. September 1, 2019.

Some potions of this standing statute are clear, while some subparts conjure up additional questions to determine whether standing exists.

If you are a parent of a child, you have standing to sue for conservatorship of that child under Texas Family Code 102.003(a)(1).

If you are a man believing that you are the father of the child, you have standing to bring a lawsuit requesting that the Court determine the paternity of the child and make other orders regarding this child per Texas Family Code 102.003(a)(8).

If you are a person (other than a foster parent) that has had actual care, custody, and control of a child for at least six months ending not 90 days before you file your suit, you might have standing to bring a lawsuit for that child. Note here that under this section there is an additional determination as to whether you’ve had “actual care, custody, and control” of the child, which raises even more questions as to your standing.

For grandparents and other close relatives of the child, Texas has also codified specific standing requirements under Texas Family Code section 102.004.  The text of that section (as of the time of this publication) reads as follows:

“Sec. 102.004.  STANDING FOR GRANDPARENT OR OTHER PERSON.  (a)  In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1)  the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or

(2)  both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

(b)  An original suit requesting possessory conservatorship may not be filed by a grandparent or other person.  However, the court may grant a grandparent or other person, subject to the requirements of Subsection (b-1) if applicable, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.

(b-1)  A foster parent may only be granted leave to intervene under Subsection (b) if the foster parent would have standing to file an original suit as provided by Section 102.003(a)(12).

(c)  Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.”

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1999, 76th Leg., ch. 1048, Sec. 2, eff. June 18, 1999. Amended by: Acts 2005, 79th Leg., Ch. 916 (H.B. 260), Sec. 3, eff. June 18, 2005. Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 2, eff. September 1, 2007. Acts 2017, 85th Leg., R.S., Ch. 341 (H.B. 1410), Sec. 1, eff. September 1, 2017.

Again, under this section there are additional determinations to be made, namely whether the child’s current circumstances significantly impair the child’s physical health or emotional wellbeing.

As you may have guessed, the question of standing will often turn on the facts and circumstances of each individual case. Standing can be a complex issue that you should discuss with an attorney that regularly practices in family law to determine whether you have the right to sue. Otherwise, you risk spending time, money, and emotional energy on a lawsuit that may not be successful.

When the State comes knocking on your door, the experience can be stressful and intimidating.  If you are contacted by the Texas Office of the Attorney General, whether you’ve received a request to attend a child support review conference in their office or whether you’ve been served with notice of a pending lawsuit, your first move should be calling an attorney that regularly practices in family law. The Texas Office of the Attorney General does not represent you or the other parent or any other party, they technically represent the “best interest of the child” and the best interest of the State. The Attorney General does not work for you and will not necessarily represent your best interests as a parent or your personal desires for visitation or custody. Consulting with an attorney that regularly practices in family law might be in your best interest rather than navigating this process alone.

Categories: 
Related Posts
  • Common Law Marriage In Texas: Often Misquoted In Bars And Everywhere Else Read More
  • Notable Family Law Cases: Holley V. Adams (1976) Read More
  • Handbook For The Recently Divorced Read More
/