In 2018, the Supreme Court of Texas’s decision in In re H.S., 550 S.W.3d 151 (Tex. 2018), provided trial courts in Texas with guidance on when a nonparent has standing (i.e., the right to file and prosecute a lawsuit) to sue for custody or visitation of a child. In analyzing Section 102.003(a)(9) of the Texas Family Code, which states that a nonparent has standing if that person had “actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition,” the Court held that a nonparent has standing if “the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children.” Notably, the Court in In re H.S. also held that a nonparent does not need to show that the parents have “wholly ceded or relinquished their own parental rights and responsibilities” to establish standing.
Good or bad, many believed that this decision of the Texas Supreme Court would open the floodgates for nonparents, such as stepparents, to sue a biological parent to seek custody and/or visitation rights. Consider an example of a stepmom, who has lived with the children and their biological father for the past 5 years. When father and stepmom get divorced, would she have standing to sue for custody and/or visitation of the children? There are plenty of stepparents who would meet the three elements provided by the Court in In re H.S.; however, before the In re H.S. decision, some court of appeals in Texas had held that the parents must have relinquished their care, control, and possession to the nonparent to meet the standing requirement. In our example, the stepmom’s bid for standing would end if the Court had adopted that view. However, by saying that relinquishment by a parent is not required, the threshold was undoubtedly lowered for a nonparent to establish legal standing in a custody case.
Returning to our example of the stepmom going through a divorce with the children’s father, it is important to note that standing is the first step in the analysis as to whether she would be awarded custody and/or visitation rights to the children. While standing means she has the right to sue, it does not mean she has a right to win her suit and get the relief she is requesting from the court. This is where an even more recent Texas Supreme Court case comes into the analysis. In In re C.J.C., 2020 WL 3477006 (Tex. 2020), the Court held that a nonparent must present evidence to overcome the presumption that a parent acts in the child’s best interest (i.e., that the parent is unfit to be the child’s parent) in order to obtain custody or visitation of a child. While our hypothetical stepmom could potentially get into the door by establishing standing under the In re H.S. case, she still faces the very high bar of showing that the father is unfit to be the children’s parent. Stepmom showing that she has served in the role of the parent and has a healthy and established relationship with the children does not appear to be enough.
Additionally, and perhaps an unintended consequence of these two decisions, is a scenario where you have a nonparent with much greater resources than a parent. With the threshold for standing apparently being more attainable under In re H.S., it allows the nonparent to enter into litigation against the parent. At the end of the day, the nonparent may not be able to convince a judge or jury that the parent is unfit and therefore not succeed in their case; however, the parent could be forced to fight through expensive and acrimonious litigation simply to defend themselves as a fit parent. Would this give rise to parents settling outside of court and essentially giving the nonparent some custody rights and visitation simply to avoid a long and expensive custody case? While most would agree that parenting decisions for children are best resolved outside of the Courtroom, does the current status of the law create potential for a parent to be forced into a somewhat pragmatic cost-benefit decision regarding the custody of their child? Does this create potential for the top priority of a custody case to shift from what is in the best interest of a child to a financial business decision?
As always seems to be the case in family law, litigants, lawyers, courts, and lawmakers are faced with balancing parental autonomy with the health, safety, and welfare of a child. I suspect we will continue to see situations that test the lines of both of these cases unless and until the legislature provides more statutory clarity on these issues.