Texas Stepfather Has Standing to Seek Custody after Mother’s Death

iStock-1147846829-300x200Non-parents have limited rights in seeking Texas custody or visitation.  In some circumstances, however, stepparents actively parent their stepchildren.  In a recent case, a stepfather challenged a court order awarding custody of his stepchild to the child’s maternal grandparents after the death of the mother.

Relationship with the Mother

According to the appeals court’s opinion, the mother was pregnant when she started dating and eventually moved in with the stepfather in 2006.  The stepfather was present for the child’s birth in 2007 and acted as a father figure to the child.  The mother filed an Original Petition in Suit Affecting the Parent-Child Relationship (“SAPCR”) soon after the birth.  The stepfather was not a party to the case.

The mother married stepfather in July 2007. The stepfather treated the child as his son and was the only father figure in the child’s life.  The mother and stepfather had a biological child together in 2010.

The father’s parental rights were terminated in 2016 after he voluntarily relinquished them. The stepfather did not legally adopt the child, so when the mother and stepfather divorced in 2018, the decree only addressed their biological child.  They were named joint managing conservators of their biological child with a standard possession order.  They acted as though the possession and custody periods in the decree applied to both children and kept them together.  The stepfather continued to act as the child’s father figure and the child had his own room in stepfather’s house.  They continued this arrangement for three years.

Grandparents are Awarded Custody

At the end of July, 2021, the mother asked the stepfather to keep both children while she was in the hospital.  Her father visited from Virginia and demanded the stepfather give the child to him and the grandmother.  When the stepfather refused to do so, the grandfather reported him to the police for allegedly kidnapping the child.

Sadly, the mother died in August 2021.  The next day the father filed a motion in the SAPCR the mother filed in 2007, seeking temporary orders naming him temporary sole managing conservator.  His motion did not name either the grandfather or grandmother, and they did not receive formal notice of the motion.  The stepfather also obtained an emergency ex parte temporary restraining order keeping the child from being removed from enrollment in his school and preventing disturbance of his possession of the child.

The grandfather sent a letter to the trial court in September demanding a copy of the pleadings.  The letter indicated the stepfather had sent screenshots of his motion to modify.  The letter mentioned a motion for co-conservatorship and expressed a belief custody could be resolved through mediation.

A few days later, the parties entered into a Rule 11 Agreement that the child would stay in his current school and live with the stepfather until they reached an agreement or there was a court order.  It also indicated mediation would occur by November 30, 2021. The trial court extended the temporary restraining order for 14 more days and specifically prohibited the child being removed from Bexar County.

In March 2022, Grandfather and Grandmother filed a petition to intervene and a plea to the jurisdiction. They wanted the stepfather dismissed from the case for lack of standing.  The stepfather responded with his own petition to intervene and requested sole managing conservatorship.

The trial court heard testimony from the stepfather, the grandfather, and two of mother’s friends.  The friends testified that stepfather had been the child’s father figure.  The trial court orally granted the plea to the jurisdiction, named the maternal grandparents joint managing conservators, and ordered the parties to coordinate to immediately turn the child over to the grandmother.

The Stepfather Appeals

The stepfather separately petitioned to adopt the child.  He attached a consent adoption signed by the child stating that he wanted the stepfather, who he referred to as his “Dad,” to adopt him.

The stepfather sought review of the temporary orders and the order granting the grandparents plea to jurisdiction by writ of mandamus.  The appeals court denied the petition, but indicated it reviewed orders granting pleas to jurisdiction under Tex. Fam. Code 102.0022(a)(9) on direct appeal.  The stepfather appealed.

The stepfather asserted standing under Tex. Fam. Code 102.003(a)(9), which confers standing on a person “who has had actual care, control, and possession of the child for at least six months ending not more than 90 days” before the petition was filed.  Case law has held that nonparents who have not shared a principal residence with the child during the required time period are not conferred standing, no matter how much care they provided for the child.  In re H.S. A non-parent shows that they had “actual care, control, and possession” if they show they acted as a parent by providing for the child’s daily needs, sharing a principal residence with the child, and exercising the type of “guidance, governance, and direction” as a parent would typically exercise. In re H.S.

The father first sough possessory conservatorship of the child on August 27, 2021, when he filed the motion to modify.  The parties disputed whether he met the statutory residency requirements because he had periodic possession of the child through his arrangement with the mother.  The appeals court did not resolve that question, however, because the father had shown through uncontested evidence that he had actual care, control and possession of the child and had shared a principal residence, for at least six months before he filed his petition to intervene in March 2022.

He had actual care, custody, and control of the child from at least the time the mother was admitted to the hospital until at least April 25, 2022.  Even if he lacked standing when he filed the motion to modify, he had established it by the time he filed the original petition to interview.

The grandparents argued, however, that the relevant time was the motion to modify based on In re C.E.M.-K. The appeals court rejected this argument, however, concluding the case determined the applicable time period in that case, it did  not establish a general rule of when the applicable period begins.

Pursuant to subsection (a)(9), a non-parent may file suit “at any time” if the six-month period did not end more than 90 days before the petition was filed.  The appeals court noted the stepfather filed his petition on March 18, 2022 and the uncontested facts established that he had actual care, custody, and control of the child for more than six months ending not more than 90 days before that petition was filed.

The appeals court reversed the trial court’s order regarding standing under Tex. Fam. Code 102.003(a)(9), so it did not address standing under 102.005.

Due Process

The stepfather also argued for reversal of the temporary and final orders because he was denied the right to be present and present evidence at trial.  The grandparents argued the stepfather had to challenge the temporary orders by mandamus, but they did not challenge his ability to directly appeal the final order.

The due process clause of the Fourteenth Amendment prohibits states from depriving people “of life, liberty, or property, without due process of law.” Generally, due process means the right to notice and the meaningful opportunity to be heard.

The stepfather was prohibited from participating in the proceedings after the trial court granted the grandparents’ plea to the jurisdiction.  He was, however, entitled to participate because he had standing. He was, therefore, denied due process.  The appeals court reversed the order granting the plea to the jurisdiction and all subsequent orders and remanded the case to allow the stepfather to participate on the merits.

Call McClure Law Group

This case shows how reliance on an informal custody arrangement does not protect the stepparent or the child in the event something happens to the parent.  In some cases, stepparent adoption may be an option.  A knowledgeable Texas child custody attorney can advise you of your rights and options.  Call 214.692.8200 to set up a consultation with McClure Law Group.


Contact Information