"Actual care, control, and possession" of the child as basis for non-parent's standing in SAPCR suit

A recent opinion from the Dallas Court of Appeals explains the concept of standing as a general legal principle, and standing for purposes of a child custody procedings in particular. In Texas, standing of grandparents and non-parents is defined by statute (Texas Family Code), and can be based on the child having lived with the petitioner. The magic language is "actual care control and possession" of the child. To get a better idea of what that means, one has to look at appellate opinions (case law). Below is an excerpt of a recent opinion of the Dallas Court of Appeals involving standing issues. Note that it points out that the standing rules can't be applied mechanically and that the application of the standing criteria depends on the specific facts in a particular case. That means that the trial court will have greater discretion than would otherwise be the case, and that the court's ruling will not be predictible. It also means that that the issue may not be easily resolved on appeal either. Different courts and judges may reach different conclusions as to whether the statutory standing requirements were met in a particular situation:

A person seeking conservatorship of a child must have standing to bring suit. See In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.). A component of subject matter jurisdiction-which is a court's power to hear a case, standing is a constitutional prerequisite to maintaining a lawsuit under Texas law and focuses on who is entitled to bring an action. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.).

Standing exists by operation of law and cannot be conferred by waiver or estoppel. In re H.G., 267 S.W.3d 120, 124 (Tex. App.-San Antonio 2008, pet. denied) (op. on reh'g). Subject to two exceptions in the context of suits affecting the parent- child relationship (SAPCR), standing also cannot be conferred by consent. See Footnote 4 In re K.K.C., No. 09-09- 00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.); H.G., 267 S.W.3d at 124.

In Texas, standing in the context of SAPCRs is governed by the family code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the code. See H.G., 267 S.W.3d at 124; see also Tex. Fam. Code Ann. §§ 102.003-.007.

If a party fails to do so, the trial court must dismiss the suit. See In re C.M.C, 192 S.W.3d 866, 870 (Tex. App.-Texarkana 2006, no pet.). We review de novo a trial court's dismissal based on lack of standing. See Coons-Andersen v. Andersen, 104 S.W.3d 630, 633-34 (Tex. App.-Dallas 2003, no pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.-El Paso 2002, no pet.). Section 102.003(a)(9)

To establish “actual care, control, and possession” as required by section 102.003(a)(9), the section under which K.V. asserts standing, the party must demonstrate (i) more than temporary or occasional possession, though it need not be exclusive, and (ii) more than the control “implicit in having care and possession of the child.” See K.K.C., 2009 WL 2045331, *3 (control); In re M.J.G., 248 S.W.3d 753, 758-59 (Tex. App.-Fort Worth 2008, no pet.) (control); Coons-Andersen, 104 S.W.3d at 634 (possession or access).

To establish the six-month requirement of “actual care, control, and possession of the child” as required by section 102.003(a)(9), the party must demonstrate the child “principally resided” with him, though the residency of the child with the party need not be continuous and uninterrupted. See Tex. Fam. Code Ann. § 102.003(b); M.P.B., 257 S.W.3d at 808; Doncer, 81 S.W.3d at 362.

Visitation in accordance with the Standard Possession Order found in section 153.312 of the family code may satisfy the standing requirement. See Doncer, 81 S.W.3d at 362. Whether a party satisfies the standing requirement under section 102.003(a)(9) is necessarily fact specific and determined on a case-by-case basis. M.P.B., 257 S.W.2d at 809.

SOURCE: Dallas Court of Appeals opinion in 05-08-00568-CV (8/8/09)