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Standing for Step-father to Sue for Custody

San Antonio Court of Appeals holds that a trial court erred in dismissing suit for lack of standing when there was conflicting testimony. In re Y.B., ___ S.W.3d ___, 2009 WL 1405166 (Tex. App.—San Antonio 2009, no pet. h.) (5/20/09)

Facts: Wife adopted children in 12/04 before husband was in the picture. On 4/22/07, husband and wife married. On1/21/08, husband moved out of wife’s house. Husband filed a SAPCR seeking to be appointed MC of wife’s children on 3/10/08. Wife filed a motion to dismiss and a plea to the jurisdiction. Trial court held a hearing with conflicting testimony about the extent of husband’s involvement with the children and granted the motion to dismiss. Trial court also awarded attorney’s fees to wife under T.R.C.P. 13.

Held: Reversed and remanded.

Opinion: TFC §102.003(a)(9) grants standing to any person who cares, controls and possesses a child for at least six months prior to and not more than 90 days before the date of filing of a petition. Witnesses gave conflicting evidence as to husband’s involvement with the children. Since there was a question of fact regarding husband’s standing, trial court erred in dismissing husband’s petition. Therefore, husband’s pleadings were not groundless, and trial court erred in awarding attorney’s fees.

Section 102.003(a)(9) is probably THE most litigated section of the code right now. I currently have several cases pending in Dallas County family law courts which are testing the limits of this section. Look for more cases to come out on how far the courts of appeals, and maybe ultimately the Texas Supreme Court, will extend this vague section.

This commentary originally appeared in the June 2009 Section Report of the Texas Family Law Section newsletter, where I serve as a guest editor.