Applying the Law to the Facts

Jacob D. Cohen
Family Law Litigation

In last week’s blog post, I outlined Texas Family Code section 102.003(a)(9) which grants standing to a non-parent to sue for custody of a child if that non-parent 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. I also explained that the Texas Supreme Court, in the case of In the Interest of H.S., ruled that a non-parent has actual care, control, and possession of a child 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. Interest of H.S., 550 S.W.3d 151, 160 (Tex. 2018).  This week, in part II of this series, you will learn what it takes to allow a non-parent to successfully sue for custody of a child.  

Since we know what the law is, how is it applied to facts?  What are the circumstances that need to exist if you are a non-parent considering options in stepping in on behalf of a child’s best interest?  To understand how courts are to apply this law to facts of applicable cases, it is necessary to first know the basics of statutory interpretation.  Because standing to bring a suit for custody in Texas is governed by statute, courts apply statutory-interpretation principles in determining whether a person falls within the category of persons upon whom such standing has been conferred. Id at 155.  When interpreting statutes, it is presumed that the Legislature’s intent is reflected in the words of the statute and those words are given their fair meaning. Id. Citing In re C.J.N.-S., 540 S.W.3d 589, 591.  Statutes are analyzed as a cohesive, contextual whole, accepting that lawmaker-authors chose their words carefully, both in what they included and in what they excluded. Id. Citing Sommers v. Sandcastle Homes, Inc., 521 S.W.3d 749, 754 (Tex. 2017).

Since the Legislature did not define the phrase “actual care, control, and possession” or its constituent parts in either the standing statute or elsewhere in the Family Code, the Texas Supreme Court looked to the terms’ ordinary meaning within the statutory contexts in accordance with its opinion in State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180-81 (Tex. 2013) (explaining that “[u]ndefined terms in a statute are typically given their ordinary meaning” and that, “when an undefined term has multiple common meanings, the definition most consistent within the context of the statute’s scheme applies”). In Interest of H.S., 550 S.W.3d 151, 157 (Tex. 2018).

The Texas Supreme Court defined “actual” in accordance with Black’s Law Dictionary (10th ed. 2014) as “existing in fact; real” and noted that the adjective “actual” precedes the uninterrupted series of nouns “care, control, and possession” and thus modifies all three. Id.  The Supreme Court determined that “care,” in the family-law context, means the “provision of physical or psychological comfort to another. Id. Citing BLACK’S LAW DICTIONARY (10th ed. 2014).  The Supreme Court stated that “control” is commonly defined as “the power or authority to manage, direct, or oversee.” Id. Citing BLACK’S LAW DICTIONARY (10th ed. 2014); see also WEBSTER’S THIRD NEW INT’L DICTIONARY (2002) (defining “control” as “power or authority to guide or manage[;] directing or restraining domination”).  Agreeing with the Austin Court of Appeal’s opinion in Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 533 (Tex. App.—Austin 2011, no pet.), the Texas Supreme Court adopted the conclusion that these words “reflect the Legislature’s intent to create standing for those who have, over time, developed and maintained a relationship with a child entailing the actual exercise of guidance, governance and direction similar to that typically exercised by parents with their child Id.

The Legislature did not use the phrase “legal custody,” “legal control,” “constructive control,” or any other language indicating that it intended formal legal authority over the child to be a condition for standing under subsection (a)(9). In Interest of H.S., 550 S.W.3d, 151, 157 (Tex. 2018).

Nor did the Legislature require the non-parent’s care and control of the child to be exclusive. Id. at 158 Citing Smith v. Hawkins, No. 01-09-00060-CV, 2010 WL 3718546, at *3 (Tex. App. – Houston [1st Dist.] Sept. 23, 2019, pet. denied (mem. Op.).  By conditioning non-parent standing on a finding that the parents have wholly “abdicated” their parental rights to the non-parent, the court of appeals and the dissent would effectively add an exclusivity requirement that is not reflected in the statute’s plain language. Id.  Our step-father from last week appreciates this point assuming he can articulate sufficient evidence to the Court showing that he and his wife effectively co-parented his step-daughters!

102.003(a)(9) also does not require the non-parent to have ultimate legal authority to control the child, nor does it require the legal parents to have ceded or relinquished their own parental rights and responsibilities. Interest of H.S., 550 S.W.3d 151, 160 (Tex. 2018).  This means that both biological parents could be alive and well and that they have taken no action to voluntarily relinquish their parental rights to the non-parent seeking custody.  Our step-father from last week’s post would likely be well within his right to sue his estranged wife (and the children’s biological father assuming he is around somewhere) for custody of his step-daughters.   

If you have read this far, you are now well versed in both standing to sue for custody of a child as a non-parent and on statutory interpretation in Texas.  That being the case, you can see how Texas Family Code section 102.003(a)(9), by its plain terms, focuses on the non-parent’s role in the child’s life.  This makes sense because the relationship that develops over time between a child and a person who serves in the parent-like role-i.e., someone who has actual care, control, and possession of the chlid-is what justifies allowing that person to seek to preserve involvement in the child’s life. Id. 

So assuming our step-father from last week can prove that he had actual care, control, and possession of his step-daughters for the appropriate amount of time, he would be well within his right to sue for custody.  If he can prove to the Court that he shared in on the every day parenting responsibilities, shared in the decision making, and shared in the appropriate discipline of the children, etc. he should be in good position to maintain a custody suit.  If you wish to consult with a family law attorney in the Houston, Texas area for more insight into child custody cases generally and how to proceed under the circumstances of your case, The Rainwater Firm attorneys are standing by to answer your questions.

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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