Yes, step-parents could have standing to bring a claim under Texas Family Code Section 102.003(11), often referred to as the \u201cstep-parent\u201d statute.\u00a0 Under this statute, a custody suit may be brought by \u201c[a] person with whom the child and the child\u2019s 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\u2019s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.\u201d\u00a0 In other words, if the biological parent who is married to the step-parent dies, then the step-parent might have standing to pursue conservatorship, possession, of and access to the child.<\/p>\n
This statute specifically gives rights to a step-parent who has helped raise one or more children of the parent who dies so long as the children have resided with the step-parent and deceased parent for at least six months ending not more than 90 days prior to the date of the filing of the petition. In determining whether or not the step-parent has standing, the court must determine whether the child\u2019s principal residence was with the step-parent and deceased parent.\u00a0 The Court will look at the following factors when determining whether the residence was a \u201cprincipal\u201d residence of the child: (1) whether the residence is a fixed place of abode, (2) whether the residence was occupied or intended to be occupied consistently over a substantial period of time, and (3) whether the residence was permanent rather than temporary. In re Kelso<\/em>, 266 S.W.3d 586, 590 (Tex.App.\u2014Fort Worth 2008, orig. proceeding); Doncer v. Dickerson<\/em>, 81 S.W.3d 349, 361 (Tex.App.\u2014El Paso 2002, no pet.). If the court reviews these three factors and determines that the child does have a principal residence with the step-parent and that such residency existed for a period of at least six months ending not more than 90 days before the date of filing of the petition, then standing is established for that step-parent.<\/p>\n After standing is established, there could be an addition hurdle for the step-parent if he or she is filing an original conservatorship suit, and that hurdle is known as the \u201cparental presumption.\u201d On the other hand, while the Texas Family Code imposes a \u201cparental presumption\u201d in original suits for parents over third parties seeking conservatorship, no such presumption applies to a modification suit filed by relatives or third parties, such as step-parents, who make a request to modify <\/em>conservatorship, possession, or access. See In re V.L.K.<\/em>, 24 S.W.3d 338 (Tex. 2000).\u00a0 Therefore, depending on the type of claim that is brought, a step-parent could have a higher burden. \u00a0If the step-parent is filing an original suit \u2013 then he or she may have to overcome the \u201cparental presumption\u201d and prove that the surviving parent is unfit in order to have certain rights.<\/p>\n