Legislative Updates: Changes to Standing Requirements

Among the 2025 legislative changes, the biggest deal, in my opinion, are the changes to the requirements for nonparent standing. Section 102.003(a)(9) changed the word "actual" to "exclusive." This is huge. It moots the Texas Supreme Court's analysis in In re H.S., 550 S.W.3d 151 (Tex. 2018). The crux of that case defined "actual care, control, and possession," giving us three elements a nonparent was required to satisfy to show standing. The split of authority that led to the Supreme Court taking that case was multiple COAs opining that "actual" meant real-world plain-English "actual" (which is the conclusion in H.S.), and two COAs finding that "actual" meant "abdication," in that a parent had to somehow abdicate his or her own care, control, and possession to the nonparent for that nonparent to have standing.

For the analysis of the "abdicate" viewpoint, see In re H.S., No. 02–15–00303–CV, 552 S.W.3d 282, 288, 2016 WL 4040497, at *4 (Tex. App.—Fort Worth 2016, pet. granted) (mem. op.) (quoting In re K.K.C., 292 S.W.3d 788, 792 (Tex. App.—Beaumont 2009, no pet.)). Unless I missed a opinion somewhere, to my knowledge, only Fort Worth and Beaumont went with the "abdicate" view.

From the Fort Worth H.S. opinion that was reversed by the Texas Supreme Court:

[S]tanding under section 102.003(a)(9) cannot be gained by a nonparent exercising care, control, and possession over a child in the absence of evidence that the child's parent [1] is unfit or [2] has abdicated his or her own care, control, and possession over the child to the nonparent for the statutory period.

Emphasis added.

So, until we get some caselaw on what "exclusive" truly means, the pre-H.S. cases from Fort Worth and Beaumont may provide some verbiage you can use in pleadings.

Other amendments were made to other statutes relating to this change, such as the addition of Section 102.0031 entitled "Required Affidavit for Standing of Nonparent" and changes to the grandparent standing statute (Section 102.004). Oddly, while making it more difficult generally for nonparents, the Legislature increased the consanguinity requirement to fourth degree instead of third.

So, while the following is good advice pretty much all the time, for right now especially, don't assume you know the standing statutes by memory. Double check the language before you file, and make sure your client meets the standing requirements before signing your pleadings. Also, this is not the only change, so you really ought to get yourself a copy of the full legislative update before the changes go into effect next month.