Breach of Visitation Agreement Claim Cannot Be Heard in the Absence of Standing

STANDING DOCTRINE PRECLUDES DETERMINATION OF WHETHER CO-PARENTING CONTRACT IS VIABLE

What if a parent and nonparent make an agreement (or arguably entered into an informal agreement) to share custody of a child or set a schedule for visitation by the nonparent? Will such an agreement be enforced as a contract by a court if the relationship between the partners sours and the natural parent of the child denies the former mate visitation or stops all contact?

The Dallas Court of Appeals recently reviewed such a claim brought by the former partner of the biological mother and disposed of it by finding that the nonparent lacked standing to bring the suit in which the issue would be presented for adjudiation. Without standing, the merits cannot be reached. Nor could the court reach the issue of whether continuing contact pursuant to the terms of a visitation agreement between the mother and her former partner would be in the child's best interest.

FROM THE OPINION:

Dismissal of Other Claims

Claim for Breach of the Possession Agreement.

In her second issue, K.V. asserts the court erred in dismissing her claim for breach of the possession agreement without a hearing on the merits. K.V. asserts the dismissal violated the open courts provision of the Texas Constitution and her due process rights under both the United States and Texas Constitutions. See United States Const. amend. XIV (due process); Tex. Const. art. I, §13 (open courts provision), §19 (due process).

As T.S. argued in her motion to dismiss, however, this claim is a claim for conservatorship, for which K.V. lacks standing. Because standing is a prerequisite to filing a suit, see M.P.B., 257 S.W.3d at 808, the trial court had to dismiss the claim and did not err for failing to hold a hearing on the merits. We resolve K.V.'s second issue against her.

SOURCE: Appellate Opinion of the Dallas Court of Appeals in Cause No. 05-08-00568-CV (8/31/09)