When serving in a parent-like role


 Jacob D. Cohen

Family Law Litigation 

Over the last 10 years, I have heard the saying that the new normal family is the abnormal family.  Apparently, it has become normal for children to be raised by parents of blended families.  In other words, in several households throughout the United States, children are raised by not only their biological mothers and fathers, but also by their step-mothers and step-fathers.  Hopefully, these orchestras of parents are able to work together in harmony for the best interests of the children.  Unfortunately, this is not always the case. 

Take the step-father of two teenage girls, for instance.  It’s the classic story of “boy meets girl.”  However, in this tale, girl is the mother of a 5 year old girl and 3 year old girl.  Biological dad is not in line to win any parent of the year awards anytime soon.  On the other hand, Mom’s new boyfriend is likely the guy Mom should have been with from the start.   Fast forward over ten years later.  Mom’s boyfriend became her husband and step-father to her two now teenage daughters.  The teenage daughters see him as much more than just their step-father.  This man has become their father for all intents and purposes.  So what happens to this man with his relationship with their mother sours and ultimately ends in divorce?  Is he just supposed to forget about these girls he thinks of as actual daughters?  What if Mom has lost her way and is not the best parent she can be at that time for her daughters?  Is he supposed to walk away when he feels a deep sense of responsibility for these children?  Luckily for him, in Texas, he has recourse.  

The Texas Family Code governs whether a person has the ability to bring a suit for custody of a child.  Under Texas Family Code section 102.003(a)(9), an original suit affecting the parent-child relationship (also known as a lawsuit for custody of a child) may be filed at any time by “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.”   In its opinion in the case titled In the Interest of H.S., the Texas Supreme Court interpreted Texas Family Code section 102.003(a)(9) and held that a non-parent has “actual care, control, and possession of the child” under that code section if, for the requisite six-month period, the non-parent served in a parent-like role by:

  1. Sharing a principal residence with the child;
  2. Providing for the child’s daily physical and psychological needs; and
  3. Exercising guidance, governance, and direction similar to that typically exercised on a day-to-day   basis by parents with their children.            

In the Interest of H.S., 550 S.W.3d 151, 160 (Tex. 2018).

In this week’s post, I have laid out the law with regard to this issue.  Stay tuned for next post when I explain, in part II of this article, how I believe the law is supposed to be applied to the facts of these types of cases.  In the meantime, The Rainwater Firm attorneys are standing by to answer any questions you may have with regard to your rights as they pertain to the custody of a child in Texas.  

Jacob D. Cohen is an attorney licensed in the state of Texas and an associate at The Rainwater Firm with principal office located in Houston, Harris County, Texas. Any opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational and advertisement purposes only and does not constitute legal advice.

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