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Rights of Relatives and Third Parties

Rights of Relative and Third Parties in Texas Child Custody and Visitation Cases

More and more relatives are becoming involved in lawsuits for custody and visitation, either by choice or by necessity. The Texas Legislature is constantly revisiting and revising the laws in this area, both substantively and procedurally, as are the courts. Any misstep in these cases can result in serious consequences.

Likewise, there seems to be enormous misconceptions about exactly what remedies are available for non-parent relatives and third parties in conservatorship and/or access cases. What relief is available can vary greatly depending upon the type of relief sought, or the time or manner in which the suit is filed. Relatives involved in these cases include, but are not limited to, grandparents (hyperlink to grandparent rights webpage), aunts, uncles, siblings, and cousins. Occasionally, even a third party may become involved in such cases.

It is most likely that the cases that Texas Courts encounter most often are those wherein a relative or third party is actually seeking what is known in Texas law as conservatorship of the child. The likelihood of success will depend on many factors, including whether the suit is an original lawsuit or modification; which standing statute is applicable; the degree of relationship to the child of the relative seeking relief; whether procedural requirements are followed; and, the kind of relief sought.

Which Relative or Third Party Can File Suit?

Texas law contains both a general standing statute as well as standing provisions specific to relatives. Thus, a relative of a minor child may seek conservatorship under any standing statute, general or specific, that applies to his or her particular circumstances. Clearly, before any party is entitled to pursue legal relief, that party must have standing to file the suit in the first place. Unless Texas law states otherwise, if a relative meets the criteria of any of the provisions of Texas law conferring standing, the fact that the petitioner is a relative is irrelevant as a matter of Texas law. Likewise, while Texas law does not require the party seeking conservatorship to be a relative of the child, it can provide grounds to achieve legal standing for relatives seeking conservatorship in addition to the standing statutes relating specifically to relatives.

However, one of the most misunderstood provisions regarding legal standing in Texas law concerns a person who has had actual care, control, and possession of a child for at least six months. Many lawsuits have been filed for conservatorship of a child based solely upon the mere fact that a parent, or both parents, of the child resided with a relative or third party and the child for a period of six months. This, in and of itself however, is insufficient to confer standing upon the party if the parents continued to act as parents in that they did not actually, or constructively, abdicate their parental duties to a relative or third party. Regardless, recent court rulings imply that if one or more of the parents reside with the child in the home of the party seeking rights for conservatorship, possession, and/or access, then something more than the mere fact that the child lived with the relative or third party for more than six months will be required.

In addition to the specific grandparent and "person with substantial past contact" standing provisions, there is a special provision under Texas Law relating to siblings of the child. However, that statute only applies in cases involving CPS where a child has been separated by the sibling as a result of CPS' actions, and it only applies to access and possession (visitation), not conservatorship (custody). Additionally, the sibling seeking access must be an adult. Thus, with regard to conservatorship, the sibling seeking conservatorship must meet the other standing requirements found under Texas law.

According to Texas law, a relative within the third degree of consanguinity is one who is a great-grandparent/grandchild; a great-uncle/aunt/nephew/niece; children of great uncle or aunt; children of first cousins; or, the child's second cousin(s). Under Texas law, only relatives within this level of affinity may file suit for conservatorship (custody), unless they independently meet one of the other legal standing thresholds under Texas law.

Texas law allows any person who shows "substantial past contact with a child" to intervene in a pending suit to seek conservatorship (custody). Please remember, however, that this remedy is limited to filing an intervention and not an original lawsuit. In other words, a person with substantial past contact who is seeking conservatorship can only do so if he or she is intervening in a current, pending case that was filed by appropriate parties with standing. If there no current pending legal action before the court, then a party asserting "substantial past contact" must qualify under some other legal statute in accordance with Texas law.

Nonetheless, Texas law opens up a possible means to anyone who has had substantial past contact with a child to intervene in a pending lawsuit. Presumably, this could be anyone, including, but not limited to, a neighbor, family friend, teacher, coach, school counselor, day-care worker, pastor, school bus driver, etc. Clearly though, success or failure of such an intervention will depend upon the specific facts of each individual case. The wording of Texas law implies the need for a determination of legal standing by a court of competent jurisdiction.

Authorization Agreements for Relatives

The unfortunate state of affairs many relatives in Texas are facing are those who have possession of children but either or both parents cannot, or will not, take care of them and the relative in actual possession of the children is legally unable to make day-to-day decisions for the children's health care, education, and other important issues that may arise. Texas law provides a means to address such situations where a relative needs some legal authority to act and/or make decisions for the benefit of a child, but do not necessarily have the desire and/or the means to request court-ordered conservatorship or possession. If both parents and the relative are willing, a properly written Authorization Agreement may be drafted and approved. But, if you are unable to reach such an agreement, and you believe you are being prevented from acting in the best interest of a child, or you as a parent believe it is not in the best interest of your child for a certain relative or third party to make particular decisions for, or to have any access to, your child, you will need the experience of a family law attorney who has been involved in such contested cases to protect your rights and the child's rights.

Our firm has served the Dallas area for over 40 years, and attorney Jerry W. Melton is Board Certified in Family Law by the Texas Board of Legal Specialization. We have the resources to answer all of your questions concerning the rights of relatives and third parties and the qualifications to present a strong case for you. Please fill out our form online or call 972-980-8000 today to schedule a free consultation.