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Grandparents and Other Third Parties
(Suit Affecting the Parent Child Relationship)

Same Sex Partners

A. Statutes
Texas Family Code section 102.003(a)(9) states that a suit may be filed at any time by 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 90 days preceding the date the petition was filed. The question raised in Coons- Andersen v. Andersen, 104 S.W.3d 630 (Tex. App. - Dallas 2003, no pet.), is whether or not this subsection confers standing to same sex partners. The court concluded the partner did not have standing and, therefore, concluded the trial court properly dismissed her suit.

B. Cases
1. Coons-Andersen v. Andersen, 104 S.W.3d 630 (Tex.App.-Dallas 2003, no pet.). This case involves the question of whether a same sex partner had standing to seek visitation with the child of her partner. The parties lived together in Florida for ten years, during which time the mother conceived a child through artificial insemination. The child was born 19 months before the relationship ended. When the relationship ended, the partner continued to provide financial assistance for the child, and had periodic visitation for approximately one year. Suit was filed more than six months after the visitation ceased. In the suit, the partner acknowledged that her actual care, control and possession had not ended within 90 days of the date suit was filed, and claimed that her failure to timely bring the suit was the result of deceptive acts on the part of the mother. The trial court granted the mother's plea in abatement, but did not specifically dismiss the suit. The court of appeals affirmed the granting of the plea and interpreted it as a dismissal of the suit, and confirmed that dismissal is the appropriate action when a challenge to standing is sustained. Coons-Andersen v. Andersen, 104 S.W.3d at 632. The court again confirms a strict application for the six month rule stating that occasional visitation with or possession of a child, is not "actual care, control, and possession" under the statute and does not satisfy section 102.003(9)'s strict time requirement. See Tex. Dep't of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861, 44 Tex. Sup. Ct. J. 672, 44 Tex. Sup. Ct. J. 767 (Tex. 2001). At the time of filing suit, appellant did not meet the statute's requirement because she had not had actual care, control, and possession of the child since October 1998. Therefore, she did not have standing under section 102.003(9). See Jones v. Fowler, 969 S.W.2d 429, 433, 41 Tex. Sup. Ct. J. 808 (Tex. 1998) (lesbian mother's former romantic partner did not have standing because she did not have actual care, control, and possession of child for requisite time before filing suit) This case also contains an interesting discussion about constitutional issues of the standing provision, in that the partner claimed the standing provisions of Tex.Fam.Code §102.003 violated the open courts provision of the Texas Constitution. The court found that while the section applies to a well recognized common law cause of action (the right of a person standing in loco parentis to a child to seek custody), the partner was not standing in loco parentis at the relevant time because of the parties' separation. The court further found that the applicable section does not restrict the rights of a person who is in loco parentis, but that even if it did, there was no showing in this case that the restriction to that cause of action as contained in the statute was unreasonable and arbitrary when balanced against the state's interest of creating standing for those who have developed and maintained a relationship with a child over time. Id. at 635. The court also declined to find that a contract to co-parent conferred standing on the partner.