Grandparents and Other Nonparents
§ 44.1General Standing to File Original Suit
A grandparent or other nonparent may file an original suit affecting the parent-child relationship at any time if the person falls within one of the following categories of persons:
1.A custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country. Tex. Fam. Code § 102.003(a)(3).
2.A guardian of the person or of the estate of the child. Tex. Fam. Code § 102.003(a)(4).
3.A person, other than a foster parent, who has 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. Tex. Fam. Code § 102.003(a)(9).
4.A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under Family Code chapter 162. Tex. Fam. Code § 102.003(a)(10).
5.A person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than ninety days preceding the date of the filing of the petition, if the child’s guardian, managing conservator, or parent is deceased at the time the petition is filed. Tex. Fam. Code § 102.003(a)(11).
6.A person who is the foster parent of a child placed by the Texas Department of Family and Protective Services in the person’s home for at least twelve months ending not more than ninety days preceding the date of the filing of the petition. Tex. Fam. Code § 102.003(a)(12).
7.A person who is a relative of the child within the third degree by consanguinity if the child’s parents are deceased at the time of the filing of the petition. Tex. Fam. Code § 102.003(a)(13).
8.A person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Family Code section 102.0035, regardless of whether the child has been born. Tex. Fam. Code § 102.003(a)(14).
If a grandparent satisfies the general standing requirement of Family Code section 102.003, it is not necessary to address the requirements of section 102.004 (grandparent standing). In re Foshee, No. 10-17-00321-CV, 2019 WL 962307, at *2 (Tex. App.—Waco Feb. 27, 2019, orig. proceeding) (mem. op.).
See section 40.3 in this manual for a detailed discussion of the topic of general standing to file suit.
In addition to the general standing to file suit provided by Family Code section 102.003(a), a grandparent, or another relative of the child related within the third degree by consanguinity, may bring an original suit affecting the parent-child relationship that seeks managing conservatorship if there is satisfactory proof to the court that (1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.004(a). The facts must show that the impairment would be significant. Facts that reflect “frustration, anger, or perhaps a lingering sadness” were found not to rise to the level of significant impairment. In re H.L., 613 S.W.3d 722, 727 (Tex. App.—Fort Worth 2020, no pet.). To provide “satisfactory proof” means that the evidence submitted regarding the standing issue, when considered in the light most favorable to the petitioner, must enable reasonable and fair-minded people to find the grounds stated in section 102.004(a)(1) or (2) exist. See In re K.D.H., 426 S.W.3d 879, 888 (Tex. App.—Houston [14th Dist.] 2014, no pet.). See also In re M.S.J., No. 10-20-00067-CV, 2020 WL 5241465, at *7 (Tex. App.—Waco Sept. 2, 2020, orig. proceeding) (mem. op.) (maternal great aunt and uncle not related to child within third degree of consanguinity despite asserting standing on that ground).
Oral consent, given by the proper party and established in the record, is sufficient to grant standing under section 102.004 even if it is given after the petition is filed. In re A.M.S., 277 S.W.3d 92, 98 (Tex. App.—Texarkana 2009, no pet.). When the petitioners in a suit affecting the parent-child relationship lack standing, an agreed order is void. In re A.M.S., 277 S.W.3d at 98–99 (petitioner related to child by affinity rather than consanguinity as required by statute does not have standing, and law does not permit parents to waive standing by agreement). When both parents have been appointed joint managing conservators, each must consent to the suit before the petitioner has standing under section 102.004(a)(2). Without consent from each managing conservator, the petitioner must have consent of both parents or the child’s surviving parent. In re Lewis, 357 S.W.3d 396, 402 (Tex. App.—Fort Worth 2011, orig. proceeding [mand. denied]). But see In re J.W.L., 291 S.W.3d 79, 85–86 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]) (grandparents had standing to seek appointment as managing conservators under section 102.004(a)(2) when only one of two managing conservators consented to grandparents’ suit).
The Texas Supreme Court has resolved a prior split of authority among the courts of appeals over whether “actual control” requires legal control. In In re H.S., 550 S.W.3d 151 (Tex. 2018), the court held that proof of “actual care, control, and possession” was established when nonparents shared a residence with the child, cared for the child, and exercised actual control typically exercised by parents. The court held that the statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have totally ceded or relinquished their own parental rights and responsibilities. See In re Cisneros, No. 13-20-00094-CV, 2020 WL 1856471, at *6 (Tex. App.—Corpus Christi–Edinburg Apr. 7, 2020, orig. proceeding) (mem. op.) (stepmother testified that she lived in same residence as child, engaged with child on daily basis, directly assisted with her education, supported her sports activities, and provided for any necessary medical needs).
Failure to plead standing under section 102.002(a)(9) may not be fatal. Although a grandmother did not explicitly assert standing under the statute, her petition and her supporting affidavit, when taken together, and when liberally construed and taken as true, were found to be sufficient to give the mother fair notice of the basis of the grandmother’s standing claim. In re T.D.L., 621 S.W.3d 346, 351–52 (Tex. App.—San Antonio 2021, no pet.).
The actual care, control, and possession of the child must have occurred before the date of commencement of the suit, and not after the third party’s intervention in a suit that was later nonsuited. In re J.A.T., 502 S.W.3d 834 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Further, the actual care, control, and possession of the child must have occurred for a period of six months ending in the ninety days immediately preceding the filing of the petition. The court may not require that the time be continuous and uninterrupted but shall consider the child’s principal residence during the relevant time. Tex. Fam. Code § 102.003(b); In re Brice, 648 S.W.3d 293 (Tex. App.—San Antonio 2019, orig. proceeding) (stepmother could not show that her home was child’s “fixed place of abode” that was occupied or tended to be occupied consistently over substantial period of time and was “permanent rather than temporary”); In re L.F., No. 02-17-00310-CV, 2017 WL 4684025 (Tex. App.—Fort Worth Oct. 19, 2017, orig. proceeding) (mem. op.) (stepmother did not proffer any computation showing that children resided with her for “periods of time” adding up to six months). A mother’s fiancé was found to have standing to intervene for conservatorship even though the six-month period in which the child lived with him was not continuous or uninterrupted. The court found that the fiancé acted as a parent to the child during the ten months prior to the mother’s death and he filed his petition less than ninety days after her death. In re Clay, No. 02-18-00404-CV, 2019 WL 545722, at *8–9 (Tex. App.—Fort Worth Feb. 12, 2019, orig. proceeding [mand. denied]) (mem. op.).
Grandparents’ suit was dismissed because they had only five months’ actual care, control, and possession of the children before filing suit. In re B.U.H., No. 13-18-00622-CV, 2020 WL 7074358, at *3 (Tex. App.—Corpus Christi–Edinburg Dec. 3, 2020, no pet.) (mem. op.).
Foster parents cannot rely on the six-month period of care, control, and possession but rather must meet the requirements of section 102.003(a)(12) and have had the child in their home for at least twelve months ending not more than ninety days preceding the date of the filing of the petition. In re Torres, 614 S.W.3d 798, 803 (Tex. App.—Waco 2020, orig. proceeding) (foster parents unsuccessfully intervened when they were no longer foster parents, claiming standing under six-month period required in section 102.003(a)(9)).
To avoid dismissal, a genuine issue of material fact must be raised to challenge the trial court’s subject-matter jurisdiction. In re D.K.P., No. 07-18-00158-CV, 2019 WL 4399475, at *2 (Tex. App.—Amarillo Sept. 13, 2019, no pet.) (mem. op.). In that case, although conflicting evidence was offered, the grandmother presented sufficient evidence to create a fact issue as to whether she had actual care, control, and possession of the child during the required six-month period. Therefore, the case should not have been dismissed for the grandmother’s lack of standing. In re D.K.P., 2019 WL 4399475, at *4.
Once a grandparent seeking conservatorship has proved standing under Family Code section 102.003(a)(9), an affidavit under section 153.432(c) no longer applies to the issue of standing. In re J.H., 538 S.W.3d 121 (Tex. App.—El Paso 2017, no pet.); see also In re G.B., No. 05-21-00463-CV, 2021 WL 4071152, at *3 (Tex. App.—Dallas Sept. 7, 2021, orig. proceeding) (mem. op.) (whether nonparent can overcome fit-parent presumption does not bear on question of whether that nonparent has standing to file suit).
The sibling of a child who is separated from the child because of an action taken by the Texas Department of Family and Protective Services may file an original suit requesting access to the child if the sibling is at least eighteen years of age. Tex. Fam. Code §§ 102.0045(a), 153.551. The sibling of a child who is separated from the sibling as a result of an action by the Department of Family and Protective Services may file an original suit requesting access to the child, regardless of the age of the sibling. Tex. Fam. Code §§ 102.0045(a–1), 153.551. These two subsections of section 102.0045 appear to be in conflict.
If the parent-child relationship between the child and every living parent of the child has been terminated, a grandparent or other person related by blood, adoption, or marriage to a former parent whose parent-child relationship has been terminated or to the father of a child may not file an original suit. This limitation does not apply to a person who has a continuing right to possession of or access to the child under an existing court order or has the consent of the child’s managing conservator, guardian, or legal custodian to bring the suit. The limitation also does not apply to an adult sibling of the child, a grandparent of the child, or an aunt or uncle who is a sibling of a parent of the child if the adult sibling, grandparent, aunt, or uncle files an original suit or a suit for modification requesting managing conservatorship of the child not later than the ninetieth day after the date the parent-child relationship between the child and the parent is terminated in a suit filed by the Department of Family and Protective Services requesting termination of the parent-child relationship. Tex. Fam. Code § 102.006.
COMMENT: Section 102.006(c) of the Family Code may have the unintended effect of giving grandparents, aunts, uncles, and adult siblings standing without their having to have any prior possession of the child or substantial past contact with the child.
§ 44.2Constitutional Challenges to Standing
With the 2005 revision of section 153.433, the Texas legislature appears to have addressed the concerns raised by Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, the United States Supreme Court held that a Washington statute permitting nonparent visitation violated a parent’s due-process right to make decisions concerning the care, custody, and control of his children. Although the Washington statute was extremely broad, at least one Texas court has applied Troxel on the issue of the standing of an unrelated third party to seek managing conservatorship:
In Troxel, the Court declined to define the precise scope of the parental due process right in the visitation context, but held that, as applied in a petition for court-ordered grandparent visitation at any time unconstitutionally infringed upon the mother’s liberty interest in her children. Troxel v. Granville, 530 U.S. at ___, 120 S. Ct. at 2064, 147 L. Ed. 2d at 61–62. “Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel v. Granville, 530 U.S. at ___, 120 S. Ct. at 2061, 147 L. Ed. 2d at 58.
In re Aubin, 29 S.W.3d 199, 203 (Tex. App.—Beaumont 2000, orig. proceeding).
The same rationale can be applied to Texas grandparents or other third parties seeking possession of or access to or conservatorship of a child based on standing provisions set forth in Family Code section 102.004 (child’s present circumstances would significantly impair child’s physical health or emotional development). The revised statutes appear to place the burden of proof squarely on the grandparents or other third parties. See Tex. Fam. Code §§ 102.004, 153.433; In re J.M.T., 280 S.W.3d 490, 492 (Tex. App.—Eastland 2009, no pet.). A grandparent’s conclusory statement is insufficient to support a finding by the court that the children’s emotional development would be significantly impaired if the grandparent never got to see them. In re G.L.A., No. 11-14-00351-CV, 2015 WL 9311644, at *2 (Tex. App.—Eastland Dec. 10, 2015, no pet.) (mem. op.).
Courts generally require a nonparent seeking conservatorship to present evidence of specific, identifiable behavior or conduct that will probably result in the child’s being emotionally impaired or physically harmed. Such evidence usually includes a showing of physical abuse, severe neglect, abandonment, drug or alcohol abuse, or very immoral behavior on the part of the parent. In re M.F.M., No. 07-16-00117-CV, 2017 WL 5473757 (Tex. App.—Amarillo Nov. 14, 2017, no pet.) (mem. op.) (per curiam); see In re Scheller, 325 S.W.3d 640, 643–44 (Tex. 2010) (orig. proceeding) (per curiam) (maternal grandfather failed to establish that denial of access to grandchildren would significantly impair grandchildren’s physical health or emotional well-being; evidence that grandchildren experienced anger and nightmares following their mother’s death did not establish anything more substantial than grandchildren’s understandable sadness resulting from losing family member and missing grandparents); see also In re J.M.G., 553 S.W.3d 137 (Tex. App.—El Paso 2018, orig. proceeding).
Trial courts may not, however, dismiss a petition for lack of standing if there is conflicting testimony about a petitioner’s involvement with the children. In re Y.B., 300 S.W.3d 1, 5 (Tex. App.—San Antonio 2009, pet. denied).
Gender-neutral treatment as set forth in Family Code section 160.106 obligates courts to treat a woman who is married to the mother of the child at the time of birth as a parent for purposes of standing and other obligations. In re D.A.A.-B., ___ S.W.3d ___, No. 08-2100058-CV, 2022 WL 3758574 (Tex. App.—El Paso Aug. 30, 2022, no pet.); Treto v. Treto, 622 S.W.3d 397, 402 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.). But see In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App.—Beaumont Apr. 27, 2017, pet. denied) (mem. op.) (rejecting nongestational spouse’s claim of standing based on presumed parentage in SAPCR portion of divorce of same-sex couple).
A mother claimed that a court’s order restricting her possession violated her constitutional rights to the care and companionship of her child, which she alleged are fundamental and constitutionally protected. The court agreed that parental rights are of constitutional magnitude, but they are not absolute. “Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that the emotional and physical interests of the child not be sacrificed merely to preserve that right.” Lehman v. Lehman, No. 03-19-00730-CV, 2021 WL 268482, at *5 (Tex. App.—Austin Jan. 27, 2021, pet. denied) (mem. op.).
§ 44.3The Fit-Parent Presumption
In In re C.J.C., 603 S.W.3d 804 (Tex. 2020), the Texas Supreme Court formally recognized a “fit-parent presumption” and addressed its application in certain suits between parents and nonparents regarding issues of conservatorship and possession. The supreme court concluded that although the statutory “parental presumption” contained in Texas Family Code section 153.131(a) remains inapplicable in modification proceedings under chapter 156, any best-interest determination in which the court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent must include a presumption that a fit parent acts in his child’s best interest. In re C.J.C., 603 S.W.3d at 818–19.
In circumstances where a parent has been given managing conservatorship rights under a prior order (whether sole or joint), the supreme court holds that when a nonparent requests to modify that conservatorship or seeks possession of a child, the child’s best interest is embedded with the presumption that it is the fit parent—not a court—who makes the determination whether to allow that request. In re C.J.C., 603 S.W.3d at 820.
Justice Lehrmann suggested in her concurring opinion that in situations where a nonparent seeks appointment as a possessory conservator or seeks only possession or access to a child, the trial court’s best-interest determination must nevertheless include “the constitutionally required deference to a fit parent’s decision” if that parent has previously been named as a sole or joint managing conservator. In re C.J.C., 603 S.W.3d at 822.
If a nonparent party overcomes the parental presumption in Family Code section 153.131(a) in an original custody proceeding or a parent voluntarily relinquishes primary conservatorship to a nonparent in that circumstance, that nonparent conservator need not overcome a fit-parent presumption in future modification proceedings. This is so because res judicata previously established the parent as “unfit,” whether by adjudicated proof or a parent’s own admission by relinquishment.
According to the In re C.J.C. court, it is only when a parent is named sole or joint managing conservator within an original custody order that the parent will retain the fit-parent presumption against a nonparent in subsequent modification suits involving conservatorship and possession issues. Following the lead of C.J.C., the El Paso court of appeals found that the fit-parent presumption did not apply to a father who had only been named as a possessory conservator in a prior order. In re B.B., 632 S.W.3d 136, 140 (Tex. App.—El Paso 2021, orig. proceeding).
A nonparent with standing who has no biological or legal relationship with the child cannot obtain court-ordered possession of the child over the wishes of a fit parent unless the nonparent proves, at a minimum, that the denial of possession would significantly impair the child’s physical health or emotional well-being. In re N.H., 652 S.W.3d 488, 498 (Tex. App.—Houston [14th Dist.] 2022, no pet.).
§ 44.4Managing Conservatorship
In any suit by a grandparent or other nonparent for managing conservatorship of a child in which a parent is an opposing party, the grandparent or other nonparent must overcome two statutory hurdles. The first requirement is very significant. Subject to the prohibition of Family Code section 153.004 concerning a history of domestic violence or sexual abuse, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed joint managing conservators of the child. Tex. Fam. Code § 153.131(a). The nonparent must show specific, identifiable conduct by the parent that is likely to cause harm to the child’s physical health or emotional development, not speculative harm. Gray v. Shook, 329 S.W.3d 186, 195–98 (Tex. App.—Corpus Christi–Edinburg 2010), rev’d on other grounds, Shook v. Gray, 381 S.W.3d 540, 542–43 (Tex. 2012) (per curiam); see also R.H. v. D.A., No. 03-16-00442-CV, 2017 WL 875317 (Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.). Evidence of a parent’s untreated mental illness that did not identify the illness with any certainty, show its effect on the mother’s ability to care for the child, or show probable harm to the child has been found insufficient to meet the burden. In re M.O., No. 05-19-00413-CV, 2019 WL 4071999, at *7 (Tex. App.—Dallas Aug. 29, 2019, no pet.) (mem. op.).
Section 153.131(a) applies only to those situations in which a nonparent seeks custody in lieu of a natural parent, not when a grandparent requests joint managing conservatorship with a parent. Brook v. Brook, 881 S.W.2d 297, 299–300 (Tex. 1994); In re A.D.H., 979 S.W.2d 445, 447 (Tex. App.—Beaumont 1998, no pet.). But see Critz v. Critz, 297 S.W.3d 464, 471 (Tex. App.—Fort Worth 2009, no pet.). In Shook, 381 S.W.3d at 542–43, the Texas Supreme Court held that a grandmother should not have been precluded from being considered for conservatorship or access to a child, even though at trial four years before she had been unable to overcome the parental presumption.
COMMENT: The Troxel decision may affect the Brook ruling.
See the discussion at section 44.3 above concerning the fit-parent presumption.
The presumption that a parent should be appointed or retained as managing conservator is rebutted if the court finds that the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, a licensed child-placing agency, or the Department of Family and Protective Services for a period of one year or more, a portion of which was within ninety days preceding the date of intervention in or filing of the suit, and that the appointment of the nonparent, the agency, or the department as managing conservator is in the child’s best interest. Tex. Fam. Code § 153.373.
The second statutory obstacle facing a grandparent or other nonparent seeking appointment as managing conservator is a rebuttable presumption that the appointment of the child’s parents as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the child’s parents removes the presumption. Tex. Fam. Code § 153.131(b). Additionally, there is a rebuttable presumption that the appointment of a parent as a sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child. Tex. Fam. Code § 153.004(b); In re M.M., No. 12-18-00243-CV, 2019 WL 1032736, at *4 (Tex. App.—Tyler Mar. 5, 2019, pet. denied) (mem. op.). Despite the statutory presumption that a parent should be appointed a possessory conservator if not appointed a joint or sole managing conservator, conservatorship determinations are reviewed under an abuse of discretion standard. In re J.F., No. 11-19-00189-CV, 2019 WL 5800343, at *1 (Tex. App.—Eastland Nov. 7, 2019, no pet.) (mem. op.) (court declined to name father as any type of conservator due to drug use and improvement of child’s behavioral issues in care of nonparent intervenors); see In re G.E.T., No. 04-19-00475-CV, 2020 WL 20152, at *4 (Tex. App.—San Antonio Jan. 2, 2020, no pet.) (mem. op.) (evidence of past conduct by itself insufficient to rebut parental presumption).
If both parents of the child are deceased, the court may consider appointment of a parent, sister, or brother of a deceased parent as a managing conservator, but that consideration does not alter or diminish the court’s discretionary power. Tex. Fam. Code § 153.431. In these circumstances, since there is no presumption in favor of a nonparent, the burden of proof for the nonparent seeking conservatorship is to show by a preponderance of the evidence that the appointment would be in the best interest of the child. In re S.D.A., 587 S.W.3d 484, 491 (Tex. App.—El Paso 2019, no pet.).
A parent may designate a grandparent or other nonparent to serve as managing conservator in an unrevoked or irrevocable affidavit of relinquishment of parental rights executed as provided by Family Code chapter 161. The court shall appoint a person so designated to serve as managing conservator unless the court finds that the appointment would not be in the child’s best interest. Tex. Fam. Code § 153.374. Termination of the parent-child relationship is discussed in chapter 50 of this manual.
Unless limited by court order or a provision in Family Code chapter 153, a grandparent or other nonparent appointed a sole managing conservator has the rights of a nonparent appointed a sole managing conservator, which are set out in Family Code section 153.371. See Tex. Fam. Code § 153.371. If appointed managing conservator, a grandparent, like other nonparents, must file an annual report with the court in compliance with Family Code section 153.375. Tex. Fam. Code § 153.375(a).
Support: A court may order either or both parents to support a child. Tex. Fam. Code § 154.001(a). A court is not authorized to order child support to be paid by the grandparents. Blalock v. Blalock, 559 S.W.2d 442, 443 (Tex. App.—Houston [14th Dist.] 1977, no writ). Similarly, because only a parent can be required to make payments under the terms of a support order for a child, a grandparent or other nonparent cannot be an “obligor” ordered to provide medical support. See Tex. Fam. Code § 101.022 (definition of “obligor”), § 154.001, ch. 154, subch. D. Child support is the subject of chapter 9 of this manual.
§ 44.5Joint Managing Conservatorship
There is no specific provision governing standing for a grandparent filing an original suit requesting joint managing conservatorship. Family Code sections 102.003 (general standing to file suit) and 102.004(a) (standing for grandparent or other relative of child within third degree of consanguinity to file suit requesting managing conservatorship) would probably apply to such an original suit. See the discussions in sections 44.1 and 44.2 above.
A grandparent or other nonparent appointed a joint managing conservator may serve in that capacity either with another nonparent or with a parent of the child. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (father testified he believed grandmother’s conservatorship was necessary, and court found appointment of mother could significantly impair children’s physical health or emotional development; grandmother appointed joint managing conservator with exclusive right to determine children’s residence along with mother and father as nonprimary joint managing conservators). The same procedural and substantive standards regarding an agreed or court-ordered joint managing conservatorship in which a parent is appointed joint managing conservator (Family Code chapter 153, subchapter C) apply to a nonparent joint managing conservator. Tex. Fam. Code § 153.372.
Unless limited by court order or other provisions of Family Code chapter 153, a grandparent or other nonparent appointed a joint managing conservator has the right of access to the child’s medical records, without regard to whether the right is specified in the order. Tex. Fam. Code § 153.3721.
There are two presumptions that a grandparent or other nonparent seeking joint managing conservatorship must overcome. See Tex. Fam. Code § 153.131; see section 44.4 above. Family Code section 153.131(a) applies only to those situations in which a nonparent seeks custody in lieu of a natural parent, not when the grandparent seeks joint managing conservatorship with a parent. Brook v. Brook, 881 S.W.2d 297, 299–300 (Tex. 1994); In re A.D.H., 979 S.W.2d 445, 447 (Tex. App.—Beaumont 1998, no pet.); see also In re Marriage of Mitchell, 585 S.W.3d 38 (Tex. App.—Texarkana 2019, no pet.) (mother, her husband, and biological father of child appointed joint managing conservators with husband having right to establish primary residence of child when court found child would be in danger of significant impairment to her emotional development if in custody of only mother and biological father); In re F.R.N., No. 10-18-00233-CV, 2019 WL 3801630 (Tex. App.—Waco Aug. 7, 2019, no pet.) (mem. op.); In re J.R.W., No. 05-15-01479-CV, 2017 WL 3083930 (Tex. App.—Dallas July 20, 2017, pet. denied) (mem. op.) (mother and grandmother appointed joint managing conservators when there was satisfactory proof that appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair child’s physical health or emotional development). But see In re Crumbley, 404 S.W.3d 156, 161–62 (Tex. App.—Texarkana 2013, orig. proceeding) (unless trial court makes finding supported by evidence that appointment of natural parent as temporary sole managing conservator would not be in child’s best interest, it may not appoint nonparent as temporary joint managing conservator).
COMMENT: The Troxel decision may affect the Brook ruling.
See the discussion at section 44.3 above concerning the fit-parent presumption.
Support: Orders for support are discussed in section 44.4 above.
§ 44.6Possessory Conservatorship
An original suit affecting the parent-child relationship that seeks possessory conservatorship may not be brought by a grandparent or other person, but the court may grant a grandparent or other person, except for certain foster parents, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit affecting the parent-child relationship filed by a person authorized to do so under Family Code chapter 102 if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or of both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 102.004(b). A foster parent may be granted leave to intervene under section 102.004(b) only if the foster parent would have standing to file an original suit as provided by Code section 102.003(a)(12). Tex. Fam. Code § 102.004(b–1). A nonparent does not have a relaxed burden on standing to intervene under this statute. See In re S.M.D., 329 S.W.3d 8, 15 (Tex. App.—San Antonio 2010, pet. dism’d). In In re S.M.D., the court of appeals provides a summary of the law governing the trial court’s determination whether the movant has met this burden:
In order to show “that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally,” the nonparent must “offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.” Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (construing section 153.131 of the Family Code). To meet this burden, the nonparent must present evidence of “specific, identifiable behavior or conduct of the parent,” as shown by “specific acts or omissions,” and evidence that such acts or omissions “will probably cause that harm.” Critz v. Critz, 297 S.W.3d 464, 474 (Tex. App.—Fort Worth 2009, no pet.). The evidence must support a logical inference that the specific, identifiable behavior or conduct will probably result in the child being emotionally impaired or physically harmed. Whitworth, 222 S.W.3d 623 [Whitworth v. Whitworth, 222 S.W.3d 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.)]. The link “may not be based on evidence which merely raises a surmise or speculation of possible harm.” Id; In re M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, writ denied). The non-parent’s burden is not met by evidence that shows she would be a better custodian of the child or that she has a strong and on-going relationship with the child. See Critz, 297 S.W.3d at 474–75; M.J.G., 248 S.W.3d at 760 [In re M.J.G., 248 S.W.3d 753 (Tex. App.—Fort Worth 2008, no pet.)]. Further, evidence of past misconduct alone is insufficient. Critz, 297 S.W.3d at 475. “If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.” May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied).
In re S.M.D., 329 S.W.3d at 16.
See the discussion at section 44.3 above concerning the fit-parent presumption.
When there is no evidence or finding that a parent is unfit, which is part of the best- interest element, it is the parent—and not the trial court—who is to determine whether to allow a third-party conservatorship or possession of children. See In re B.F., No. 02-20-00283-CV, 2020 WL 6074108, at *4 (Tex. App.—Fort Worth Oct. 15, 2020, orig. proceeding) (mem. op.).
A parent is entitled to the fit-parent presumption. See In re S.D., No. 14-20-00851-CV, 2021 WL 3577852, at *3 (Tex. App.—Houston [14th Dist.] Aug. 10, 2021, orig. proceeding) (mem. op.). Any best-interest determination in which a court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent must include a presumption that a fit parent acts in his or her child’s best interest. In re C.J.C., 603 S.W.3d 804, 812 (Tex. 2020). However, in her concurring opinion, Justice Lehrmann pointed out that “[t]he question of the degree of evidence necessary to overcome the presumption that a fit parent’s decisions are in the best interest of the child when a nonparent who has acted in a parent-like role seeks visitation remains unanswered.” In re C.J.C., 603 S.W.3d at 823.
Under certain circumstances, a biological or adoptive grandparent may request possession of or access to a grandchild by filing an original suit affecting the parent-child relationship or a suit for modification requesting that relief. See Tex. Fam. Code §§ 153.432–.434. See section 44.7 below for a detailed description of this topic.
Unless limited by court order or other provisions of Family Code chapter 153, a grandparent or other nonparent appointed a possessory conservator has the rights of a nonparent appointed a possessory conservator that are set out in Family Code section 153.376(a) and any other right or duty specified in the court order appointing the person possessory conservator. Tex. Fam. Code § 153.376.
Support: Orders for support are discussed in section 44.4 above.
§ 44.7Possession of or Access to Grandchild
A biological or adoptive grandparent may request possession of or access to a grandchild by filing an original suit or a suit for modification as provided by Family Code chapter 156. Tex. Fam. Code § 153.432(a). A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit. Tex. Fam. Code § 153.432(b).
A biological or adoptive grandparent may not request possession of or access to a grandchild if—
1.each of the biological parents of the grandchild has died, had the person’s parental rights terminated, or executed an affidavit of waiver of interest in the child or an affidavit of relinquishment of parental rights under Family Code chapter 161 that designates the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child’s stepparent as the child’s managing conservator and
2.the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child’s stepparent.
Under section 153.434, a grandparent who requests access in the alternative to adopting the grandchildren loses standing to request access once the grandchildren are adopted by a person who is not a stepparent. Martinez v. Estrada, 392 S.W.3d 261, 264 (Tex. App.—San Antonio 2013, pet. denied).
The grandparent filing the suit must execute and attach an affidavit that contains, along with supporting facts, an allegation that denial of possession of or access to the child by the petitioner would significantly impair the child’s physical health or emotional well-being. The court must deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized by Code section 153.433. Tex. Fam. Code § 153.432(c). Merely showing that the grandparents had a close relationship with a grandchild is not sufficient to support granting of access if grandparents cannot show that the child’s health or well-being would suffer if they did not have access. In re Kelly, 399 S.W.3d 282, 284 (Tex. App.—San Antonio 2012, orig. proceeding). Unlike Texas Family Code section 102.004(b), Code section 153.433 allows a grandparent to seek possession of or access to a child without consideration of the merits of appointment of a parent as managing conservator; instead, the question is whether denial of the grandparent’s possession or access would significantly impair the child’s physical health or emotional well-being. In re Nelke, 573 S.W.3d 917, 925 (Tex. App.—Dallas 2019, orig. proceeding); see In re C.J., No. 05-18-01244-CV, 2019 WL 7207171 (Tex. App.—Dallas Dec. 27, 2019, no pet.) (mem. op.).
The court may order reasonable possession of or access to a grandchild by a grandparent if—
1.at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
2.the grandparent requesting possession or access overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession or access would significantly impair the child’s physical health or emotional well-being; and
3.the grandparent requesting possession or access is a parent of a parent of the child and that parent of the child (a) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition, (b) has been found by a court to be incompetent, (c) is dead, or (d) does not have actual or court-ordered possession of or access to the child.
An order granting possession or access rendered over a parent’s objections must state with specificity that each of the foregoing requirements has been met. Tex. Fam. Code § 153.433(b).
Section 153.433 does not contain the specific requirement that grandparent access be in the child’s best interest. However, the Family Code provides that the best interest of the child shall always be the court’s primary consideration in determining the issues of possession and access to the child. Tex. Fam. Code § 153.002. The grandparent must overcome the presumption that a parent acts in the child’s best interest by proving that denial of possession or access would significantly impair the child’s physical health or emotional well-being. Tex. Fam. Code § 153.433(a)(2); see In re Derzapf, 219 S.W.3d 327 (Tex. 2007) (orig. proceeding) (per curiam); In re A.E.M., No. 05-18-01474-CV, 2019 WL 5957947 (Tex. App.—Dallas Nov. 13, 2019, no pet.) (mem. op.); In re Turan, No. 13-19-00124-CV, 2019 WL 4871484 (Tex. App.—Corpus Christi–Edinburg Oct. 2, 2019, orig. proceeding) (mem. op.); In re J.P.C., 261 S.W.3d 334, 337 (Tex. App.—Fort Worth 2008, no pet.). Courts have found that there is a “hefty statutory burden” to overcome the presumption that a parent would act in the child’s best interest. See In re Scheller, 325 S.W.3d 640, 643–44 (Tex. 2010) (orig. proceeding) (per curiam). See the discussion of the fit-parent presumption in section 44.3 above.
The court cannot grant temporary access to a grandparent unless the parent has had a meaningful opportunity to be heard. In re Chambless, 257 S.W.3d 698, 700 (Tex. 2008) (orig. proceeding) (per curiam).
A trial court may appoint an expert to serve both as a guardian ad litem to the children and as an expert psychologist to examine the parties and the children to make recommendations to the court regarding whether depriving a grandparent of access would significantly harm the child’s emotional well-being or physical health. In re Scheller, 325 S.W.3d at 644–46.
Grandparents may be granted possession of a grandchild after the child was removed from abusive parents even though the grandparents have not affirmatively sought possession or access. The trial court was required to “evaluate the [Department’s] efforts to identify relatives who could provide the child with a safe environment, if the child is not returned to a parent.” In re Roberts, No. 07-12-00402-CV, 2012 WL 6013223, at *3 (Tex. App.—Amarillo Dec. 3, 2012, orig. proceeding).
COMMENT: Revised section 153.433 specifically omits a requirement that possession and access be in the best interest of the child. Best interest, however, always takes precedence in cases involving children. Therefore, the best-interest discussion in the following cases may still be useful to the practitioner: Troxel v. Granville, 530 U.S. 57 (2000); see In re C.P.J., 129 S.W.3d 573, 578–79 (Tex. App.—Dallas 2003, pet. denied) (father testified that grandparent visitation was in best interest of children); see also In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.—Dallas 2003, no pet.) (grandparent access allowed because mother testified at trial that it would be in children’s best interest to have relationship with grandparents and that it would not be in children’s best interest to have no contact with grandparents).
COMMENT: Although the relevant Family Code sections have been revised to include possession, rather than merely access, they do not give the practitioner or the courts any guidance about what “possession” means or whether the grandparent would be entitled to any accompanying rights or duties. Given the heavy burden that a grandparent must shoulder in order to obtain these rights and the fact that the grandparent’s child does not want the grandparent to have the rights (otherwise the suit would not have been necessary), it would appear that a parent might not want the grandparent to have a right to authorize medical care and so forth. Additionally, under the Health Insurance Portability and Accountability Act, with whom are medical providers allowed to communicate without a court order? Finally, if a grandparent has possession of a child, should the grandparent not also have the duty to inform the parents that he or she is living with or married to a sex offender? These questions and concerns are not answered or addressed by the Code provisions.
Discovery: Discovery in grandparent access and possession cases must be reasonably tailored to obtain evidence that denial of the grandparents’ possession of or access to the child would significantly impair the child’s physical health or emotional well-being. In re Wood, No. 01-06-00014-CV, 2006 WL 648774, at *4–6 (Tex. App.—Houston [1st Dist.] Mar. 14, 2006, orig. proceeding) (mem. op.).
§ 44.8Suit to Request Termination and Adoption
If a grandparent or other nonparent does not have general standing to file suit, the person may have standing to file an original suit requesting only an adoption or an original suit for termination of the parent-child relationship joined with a petition for adoption if the person—
1.as the result of a placement for adoption has had actual possession and control of the child at any time during the thirty-day period preceding the filing of the petition;
2.has had actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition;
3.has adopted, or is the foster parent of and has petitioned to adopt, a sibling of the child; or
4.is determined by the court to have had substantial past contact with the child sufficient to warrant standing to do so.
Tex. Fam. Code § 102.005(2)–(5).
Family Code section 153.434 provides that a biological grandparent may not request possession of or access to a grandchild if the child’s biological parents have died and the child is the subject of a pending suit for adoption. However, the statute does not prevent a court from considering whether an adoption would result in the child’s loss of access to family and whether that would be in the child’s best interest. In re C.J.T., No. 04-14-00621-CV, 2016 WL 413262, at *5 (Tex. App.—San Antonio Feb. 3, 2016, no pet.) (mem. op.).
Termination and adoption are more fully discussed in chapters 50 and 51 of this manual.
§ 44.9Intervention in Suit Affecting Parent-Child Relationship
A grandparent or other nonparent may wish to intervene in a pending suit—such as a parentage suit, divorce, modification, or termination—to seek managing, joint managing, or possessory conservatorship or to request a modification of the terms of an order affecting the grandparent or other nonparent.
A grandparent or other nonparent has the right to intervene in a suit affecting the parent-child relationship if the grandparent or other nonparent could file an original suit to seek the same relief. In re Chester, 398 S.W.3d. 795, 801–02 (Tex. App.—San Antonio 2011, orig. proceeding). In addition to the general standing to file suit provided by Family Code section 102.003(a), a grandparent, or another relative of the child related within the third degree by consanguinity, may bring an original suit affecting the parent-child relationship that seeks managing conservatorship if there is satisfactory proof to the court that (1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.004(a). However, persons not related to the child within the third degree of consanguinity cannot intervene unless there is some other basis on which they can assert standing under the Family Code. In re Schick, No. 04-18-00839-CV, 2018 WL 6624380, at *3 (Tex. App.—San Antonio Dec. 19, 2018, orig. proceeding) (mem. op.).
Although a grandparent or other nonparent may not file an original suit requesting possessory conservatorship, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under Family Code chapter 102 if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 102.004(b). In re L.D.F., 445 S.W.3d 823 (Tex. App.—El Paso 2014, no pet.) (grandparent appointed joint managing conservator with father when court impliedly found that, because of his mental impairment, father’s sole custody would significantly impair child’s physical health or emotional development). But see Whitworth v. Whitworth, 222 S.W.3d 616 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (grandparent allowed to intervene and appointed sole managing conservator even though there were no specific allegations that child’s physical health or emotional development would be impaired or any evidence to that effect). Failure to seek leave of court to intervene and determination of standing of the person requesting possession of a child renders any subsequent orders void. In re H.R.L., 458 S.W.3d 23 (Tex. App.—El Paso 2014, orig. proceeding).
Tex. Fam. Code § 102.004 provides that a trial court “may” permit an intervention if appointing a parent as sole managing conservator would significantly impair a child’s physical health or emotional development. However, the statute’s use of the term “may” does not permit trial courts complete discretionary authority. The Beaumont court of appeals granted mandamus to allow a grandfather’s intervention, opining that if the legislature intended additional criteria to apply to standing, it could have easily placed such into the statute. In re M.B., No. 09-19-00247-CV, 2019 WL 4865197, at *4 (Tex. App.—Beaumont Oct. 3, 2019, orig. proceeding) (mem. op.).
In a case of first impression, the Dallas court of appeals has held that grandparents, as contrasted with “other persons,” are not required to establish substantial past contact under section 102.004(b). See In re Nelke, 573 S.W.3d 917, 922–23 (Tex. App.—Dallas 2019, orig. proceeding).
Consent of only one of two managing conservators under Code section 102.004(a)(2) will not confer standing on grandparents to intervene in a SAPCR. In re Lewis, 357 S.W.3d 396, 402 (Tex. App.—Fort Worth 2011, orig. proceeding); In re S.M.D., 329 S.W.3d 8, 14 (Tex. App.—San Antonio 2010, pet. dism’d). But see In re J.W.L., 291 S.W.3d 79, 84–86 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]). Even if both parents consent, such consent is “not relevant” to standing under Code section 102.004(b). In re A.G., No. 05-18-00725-CV, 2018 WL 6521893, at *3 (Tex. App.—Dallas Dec. 12, 2018, no pet.) (mem. op.).
Standing to file an original suit affecting the parent-child relationship is more fully discussed in section 40.3 in this manual.
Tex. Fam. Code § 102.004, which governs which parties have standing to intervene in a pending suit affecting the parent-child relationship, has more relaxed requirements than those governing standing to file an original suit. When a termination suit is already pending, “the overriding concern for the best interest of the child . . . is greater than the concern for the privacy of the parties.” In re Salverson, No. 01-12-00343-CV, 2012 WL 1454549 (Tex. App.—Houston [1st Dist.] Apr. 23, 2012, orig. proceeding) (mem. op.).
Once a grandparent is allowed to intervene in a suit affecting the parent-child relationship, the trial court does not lose jurisdiction and the grandparent is in the suit for all purposes even if both parents file a notice of nonsuit. In re Schoelpple, No. 14-06-01038-CV, 2007 WL 431877 (Tex. App.—Houston [14th Dist.] Feb. 8, 2007, orig. proceeding) (mem. op.). The intervention is subject to being stricken by the court for sufficient cause. Tex. R. Civ. P. 60; Metromedia Long Distance, Inc. v. Hughes, 810 S.W.2d 494, 497 (Tex. App.—San Antonio 1991, writ denied).
A grandparent or other nonparent who has standing to sue under Family Code chapter 102 or who is a party affected by the order may file a suit for modification in the court with continuing, exclusive jurisdiction. Tex. Fam. Code § 156.002(a), (b); see In re D.D.A., No. 05-18-01324-CV, 2020 WL 2079176, at *3 (Tex. App.—Dallas Apr. 30, 2020, no pet.) (mem. op.) (grandmother granted one supervised visit per month in suit under different cause number concerning same child had standing); In re S.G.C.-G., No. 05-18-00223-CV, 2019 WL 1856621 (Tex. App.—Dallas Apr. 25, 2019, no pet.) (mem. op.) (nonbiological relative who had been awarded rights to have telephone access to child, to consent to medical care, and to share in educational decisions had standing to file petition to modify seeking managing conservatorship); In re T.R.H., No. 09-17-00001-CV, 2018 WL 2246545 (Tex. App.—Beaumont May 17, 2018, no pet.) (mem. op.) (grandmother had standing to file motion to modify after being served with citation of mother’s motion to remove grandmother’s previously granted right to visitation and possession); In re Shifflet, 462 S.W.3d 528 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding) (stepgrandparents’ adjudicated right to telephone access gave standing to modify conservatorship). A child’s sibling who is separated from the child because of the actions of the Department of Family and Protective Services may file a suit for modification requesting access to the child in the court with continuing, exclusive jurisdiction. Tex. Fam. Code § 156.002(c).
Whether a material and substantial change in circumstances occurred is a question of fact, requiring an evidentiary hearing. Nellis v. Haynie, 596 S.W.3d 920, 925–26 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
Although the Texas Supreme Court has determined that the statutory parental presumption in Family Code section 153.131 does not apply in modification proceedings (see In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000)), the court has held that, when modifying an existing order that names a parent as the child’s managing conservator, the presumption that fit parents act according to the best interest of their children applies. In re C.J.C., 603 S.W.3d 804, 808 (Tex. 2020). However, in her concurring opinion, Justice Lehrmann pointed out that “[t]he question of the degree of evidence necessary to overcome the presumption that a fit parent’s decisions are in the best interest of the child when a nonparent who has acted in a parent-like role seeks visitation remains unanswered.” In re C.J.C., 603 S.W.3d at 823.
The Fort Worth court of appeals has held that the death of a parent does not terminate the original custody determination, and any subsequent suit is a modification action. See In re P.D.M., 117 S.W.3d 453, 458–60 (Tex. App.—Fort Worth 2003, pet. denied).
A grandparent or other nonparent seeking to modify a decree must comply with the standards established in Family Code chapter 156. See chapter 41 of this manual.
The sibling of a child who is separated from the child because of an action taken by the Department of Family and Protective Services may seek access to the child by filing an original suit or a suit for modification under Family Code chapter 156. The sibling may request access to the child in a suit filed for the sole purpose of seeking that relief, without regard to whether the issue of managing conservatorship is an issue in the suit. The court shall order reasonable access to the child if the court finds that access by the sibling is in the child’s best interest. Tex. Fam. Code § 153.551.
Pleadings in an original suit affecting the parent-child relationship are discussed in section 40.5 in this manual. Pleadings in suits for modification are discussed in section 41.3 in this manual.
Jurisdiction in a case in which a grandparent or other nonparent is seeking managing conservatorship of, possession of, or access to a child is determined by the Uniform Child Custody Jurisdiction and Enforcement Act (Family Code sections 152.001 through 152.317). See In re Shurtz, No. 03-11-547-CV, 2011 WL 6938502 (Tex. App.—Austin Dec. 30, 2011, orig. proceeding) (mem. op.). See chapter 43 of this manual.
When a jurisdictional plea challenges the existence of jurisdictional facts with supporting evidence, the standard of review mirrors that of traditional summary judgment. To avoid dismissal, a genuine issue of material fact must be raised to overcome the challenge to the trial court’s subject-matter jurisdiction. In re D.K.P., No. 7-18-00158-CV, 2019 WL 4399475, at *2 (Tex. App.—Amarillo Sept. 13, 2019, no pet.) (mem. op.).
Venue for an original suit is as provided in Family Code section 103.001. See Tex. Fam. Code § 103.001(a). The term suit in title 5 of the Texas Family Code is defined as a legal action under title 5 of the Family Code. Tex. Fam. Code § 101.031.
An original suit shall be filed in the county in which the child resides unless another court has continuing, exclusive jurisdiction under Family Code chapter 155 or venue is fixed in a suit for dissolution of a marriage under Family Code chapter 6, subchapter D. Tex. Fam. Code § 103.001(a). If a Texas court has acquired continuing, exclusive jurisdiction, no other Texas court has jurisdiction of a suit with regard to that child except as provided by Family Code chapter 155, section 103.001(b), or chapter 262. Tex. Fam. Code § 155.001(c).
A transfer of venue of a suit is governed by the provisions of Family Code sections 103.002 and 103.003 and chapter 155. If venue is improper, it may be transferred on the timely motion of an intervenor. See chapter 42 of this manual. If the court fails to transfer the suit pursuant to the mandatory transfer statute, mandamus is available to compel mandatory transfer in suits affecting the parent-child relationship. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987) (orig. proceeding) (per curiam); Arias v. Spector, 623 S.W.2d 312, 313 (Tex. 1981) (orig. proceeding) (per curiam). For the purposes of a motion to transfer, the intervenors are characterized as “petitioners” and may request transfer at the time they file their petition in intervention. Walker v. Miller, 729 S.W.2d 120, 121–23 (Tex. App.—Dallas 1987, orig. proceeding).
When representing a grandparent or other nonparent, it is important to remember that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. See Tex. Fam. Code § 153.002. Suits by grandparents and other nonparents are difficult because of the issues of standing to file suit and because of the presumptions favoring parents over nonparents. See In re C.J.C., 603 S.W.3d 804, 820 (Tex. 2020) (court must apply presumption that fit parent—not court—determines best interest of child in any proceeding in which nonparent seeks conservatorship or access over objection of child’s fit parent).
§ 44.16Attorney’s Fees and Costs
Attorney’s fees and costs are discussed in section 40.16 and in chapter 20 in this manual.
The final order in a suit affecting the parent-child relationship must include a parenting plan. Tex. Fam. Code § 153.603. Parenting plans are discussed in chapter 16 of this manual.
§ 44.18Transfer of Permanent Physical Custody of Adopted Child
Court approval is required for the transfer of permanent physical custody of an adopted child by a parent, managing conservator, or guardian to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relationship with the child. See Tex. Fam. Code § 162.026. It is a felony offense to conduct, facilitate, or participate in an unregulated custody transfer of an adopted child except as provided in Tex. Penal Code § 25.081(d). See Tex. Penal Code § 25.081. This topic is discussed in more depth in section 51.30 in this manual.