Judges at odds over nonbiological "de facto" parent's standing to assert custody and visitation claims

Judges do not see eye to eye when it comes to whether individuals who have assumed the role of a parent for a child that is not theirs can satisfy the standing requirement of the Texas Family Code, and qualify to be appointed possessory or managing conservators of the child.

The diversity of viewpoints is illustrated by the opinions written by Justices of the Beaumont Court of Appeals in a recent case in which the Mother wanted her former partner out of the picture after termination of the relationship.

The majority disagreed with the resolution of the issue in the court below and set aside the trial court judge's order appointing mother and her former live-in partner as joint managing conservators of the child they had been raising together. The Chief Justice, however, would have left the trial court's ruling undisturbed, and explained why in his dissent, the text of which is reproduced below.

DISSENTING OPINION BY CHIEF JUSTICE McKEITHEN

There is no dispute concerning the facts of this case. A man not biologically related to the child lived with and raised the child with the child's mother, from infancy to the child's grade-school years. The record shows the man nurtured, disciplined and financially supported the child.

The man lived with the child and the child's mother as a continuous and permanent family unit for a period of time far exceeding six months. He filed a suit affecting the parent-child relationship (SAPCR) within ninety days of separating from the child's mother.

The trial court found a sufficient factual basis to support the man's claim that he had "actual care, control, and possession" of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. See Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008).

The record supports that finding, yet the majority holds that this man has no standing to file a SAPCR pursuant to Section 102.003(a)(9) of the Texas Family Code because there has been no showing that the mother of the child "relinquished" the actual care, control, and possession of the child, or in some other way "abdicated" her parental responsibilities.

Family units ideally have two partners who share child-rearing responsibilities. Nothing in the plain language of Section 102.003(a)(9) excludes a person who shares the role of a parent with the biological parent from having standing as a person with "actual care, control, and possession" of the child. See id.

Nothing in the plain language of the statute necessitates the "relinquishment" or "abdication" by the biological parent of her parental rights, duties or responsibilities. There is no exclusivity requirement in the statute's plain language. See id.

There is, however, a rational basis for conferring standing on a person who shares actual care, control, and possession of a child with that child's parent for a period in excess of six months.

I do not believe a statute that merely confers standing on such a person is an unconstitutional infringement on the liberty interest of the parent who voluntarily shared care, control, and possession of the child for a period exceeding six months.

Because I cannot agree with the majority's interpretation of this statute, I respectfully dissent.

______________________________
STEVE McKEITHEN

Chief JusticeDissent Delivered
July 16, 2009

In Re KKC (Tex.App.- Beaumont, Jul. 16, 2009)(order granting nonparent conservatorship reversed by mandamus)