Who Can File for Custody? Line up!

Many people, other than parents, come to my office wanting to get custody of a child. Grandparents, stepparents, aunts, uncles, nannies and neighbors (the list is endless) are compelled to seek legal assistance and court intervention to acquire controlling rights over a child.

Many are related to the child, have significant past contact with the child, or the child has lived with them for a period of time.

After a decision by the U.S. Supreme Court on June 5, 2000, Troxel vs. Granville most states tightened the rules regarding these “third parties” seeking visitation or custody. The Troxel decision found a fit parent’s right to raise their own child to be constitutionally protected. Texas statutes and case law followed. As a result, I have told many of these people they do not have the right to file suit.

On June 15, 2018, the Texas Supreme Court issued an opinion that will widen the doors to nonparents who want to file a custody suit. Keep in mind this does not guarantee they will prevail in the lawsuit, just that they may now have the right to FILE the suit.

In the recent Texas Supreme Court case, In re H.S., the court determined that if the child has primarily resided with a nonparent for over six months and 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, that person can sue for custody of the child. The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.

What does that mean?

Depending on the parent’s circumstances, there may be times where the parent(s) choose not to
live independently. They, along with their minor children, may move in with their parents or other friends or family members to help make ends meet. They may need physical and financial help with the children. They may still make decisions for the children, but may share that decision-making authority with the person they have chosen to live. They may need to attend to their own needs, like therapy or rehab and leave the children with the other caretaker – with an intention to return – or they may share the residence with the children and other family member. They may choose to keep these arrangements for six months or longer.

What is the result?

In any of those fact scenarios, the grandparent, friend or family member, who has served in a “parent-like” role may have the right to sue for custody of the children. This is a significant legal decision and drastically increases the rights of a nonparent to bring suit. The first time a court is involved in the life of the child a presumption would still apply that an award of custody to the parent would be in the child’s best interest. However, in the event of a modification of custody from a prior divorce or suit involving the same child, no parental presumption would apply and the parent and nonparent would compete for custody based on best interest of the child on a “level” playing field.

Is this good or bad?

As with most controversial legal decisions, there are two sides to the story. Parents clearly should have the right to raise their children if they are fit without having to spend money to fight off nonparents trying to take away their children. The question turns on what constitutes the nonparent’s right to bring a suit against the parent. Under the current law, if a parent chooses to share a residence with a nonparent and the children or leaves the children with a nonparent for more than six months, that invokes the only bright line rule. If the six-month test is met, simply allowing the nonparent to have a “parent-like” role may be enough to open the door to a lawsuit.