Does "actual care, control, and possession" still matter?
Family law is a unique area of law. It is governed by the Texas Family Code, which attempts to provide specific rules, guidelines, and a unified structure that applies to every party equally. The primary concern of the Family Code (with respect to suits involving children) is always the best interest of the child. However, regardless of the legislature’s intent, the best interest of the child is not always easily reduced to black and white codified rules. And even if it was, reasonable people often tend to disagree on what is in the best interest of children generally and what is in the best interest of a child a specific case.
Texas Supreme Court’s Recent Decision Apply Troxel
On June 26, 2020, the Texas Supreme Court released an opinion in In re C.J.C., __ S.W.3d __, No. 19-0694, 2020 WL 3477006 (Tex. 2020). Here are the 30,000-foot version of the facts: Mom and Dad had existing orders for the child, possession, support, etc. Mom filed a suit to modify those orders, but she died while the suit was pending. Dad filed a suggestion of death, and Mom’s fiancé and Mom’s parents filed interventions. The Maternal Grandparents’ suit was dismissed because they did not have standing. The fiancé was found to have standing pursuant to Texas Family Code Section 102.003(a) because he had actual care, control, and possession for at least six months ending not more than 90 days before he filed suit. Subsequently, the trial court entered temporary orders giving fiancé possession. Dad sought petition for writ of mandamus. The Court of Appeals denied the petition, so Dad sought relief from the Texas Supreme Court, which agreed to receive briefing on the case.
While pending, the Court received several amicus briefs, which were filed by the Texas Public Policy Foundation, the Texas Home School Coalition, the Parental Rights Foundation, the Alliance Defending Freedom, A Voice For Choice Advocacy, the State of Texas (Ken Paxton, AG), Texas Values, the Family Law Council, the Texas Association of Family Defense Attorneys, and the King George Law Society. Most of the briefs agreed with Dad’s assertions that as the biological father of the child, no other persons should be permitted to invade the sanctity of the family. The Texas Supreme Court’s ultimate decision applied a 2000 U.S. Supreme Court decision (Troxel v. Granville) which requires that a third-party intervenor in a child-custody suit first establish that the surviving parent is “unfit” before that third-party can establish standing. This has become known as the “fit-parent presumption.” The Court held that because there was no evidence in this case that Dad was “unfit,” the fiancé was not entitled to possession, and Dad won his mandamus action.
Some people may read to this point and think, “Good! What was fiancé thinking trying to stick his nose into this suit?!”
Texas Supreme Court’s 2018 definition of “Actual Care, Control, and Possession”
The Texas Family Code provided the fiancé with an avenue to seek relief, which stemmed from Texas Family Code Section 102.003(a), entitled “General Standing to File Suit.” Subsection (a)(9) grants standing to “a person, other than a foster parent, who has 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.” For a number of years, parties and the courts of appeals have disagreed about what “actual care, control, and possession” meant. The crux of that dispute centered on whether it was sufficient for a person to be acting as a parent to the child or whether the biological or legal parents previously relinquished care to the person seeking standing.
In 2018, the Texas Supreme Court resolved this split in In re H.S., 550 S.W.3d 151 (Tex. 2018). After a thorough statutory analysis, the court determined that requiring a parent to first relinquish legal care inappropriately added extra words that did not exist in the statute. The Court found that a non-parent could have standing under Subsection (a)(9) if they:
(1) shared a principal residence with the child;
(2) provided for the child’s daily physical and psychological needs; and
(3) exercised guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children.
The Court concluded:
Parental rights are fundamental, but neither the Texas Family Code nor the Constitution treats them as plenary and unchecked. The Family Code recognizes that a narrow class of nonparents, who have served in a parent-like role to a child over an extended period of time, may come to court and seek to preserve that relationship, over a parent’s objections. We hold that Grandparents fall into that class, although we express no opinion on whether Grandparents are entitled to conservatorship or visitation rights with respect to [the child in this case].
The final sentence of the quoted paragraph above should be re-read and noted. This is a question of standing. It is simply a question of whether a person has the right to present his or her case to the court. There is nothing in this holding that says a nonparent has a right to prevail over a parent. Additionally, despite this being an existing split of authority that was (or should have been) on many family law practitioners’ radars for years, zero amicus briefs were filed during the pendency of this case.
In the Court’s recent opinion in In re C.J.C., the majority referenced In re H.S. but distinguished it based on the fact that the grandparents in In re H.S. were kicked out based on standing before any relief was granted. In In re C.J.C., the fiancé was given some possessory rights to the child. The Court did not overrule In re H.S.
Unanswered Questions
After reading the majority’s opinion in In re C.J.C., one is left with a question: if a person can establish standing based on their parent-like role but cannot actually obtain any relief absent a finding that the surviving parent is “unfit,” does that not make being able to establish standing pursuant to Subsection (a)(9) useless? What is the point of having standing if the party with standing is not actually entitled to affirmative relief? Does the holding in In re C.J.C. not add an additional requirement that a person be able to show that the biological parent is unfit, which is explicitly the opposite of the holding in In re H.S.?
Justice Lehrmann’s concurrence touched on this concern but did not answer the question. She specifically asked, “Under what circumstances may a trial court award custody or visitation to a nonparent over a fit parent’s objection, notwithstanding the special weight that must be accorded the parent's decision?” She goes on to explain that “in determining whether an award of visitation to a nonparent is in a child’s best interest, courts may afford the requisite deference to a fit parent’s decisions concerning his child while still giving due consideration to the effect on the child’s well-being of severing, or significantly curtailing, contact with a person who has served in a parent-like role to the child over a significant period of time.” Now we just need to figure out how to turn that into a statute.