Texas Divorce Attorney Blog
Stepparents often develop strong bonds with their stepchildren. It is not unusual for a stepparent to take on a parental role and, in some cases, even become the primary caregiver for the child. Although stepparents have not traditionally had strong rights, recent developments in Texas child custody law could open the door to more cases of stepparents seeking custody or visitation of their stepchildren.
In the past, Texas stepparents’ rights primarily derived from Texas Family Code § 102.003(11), which confers standing to file suit for custody or visitation on a person with whom the child and the child’s parent, guardian, or managing conservator lived for at least six months, but only if the child’s parent, guardian, or managing conservator is deceased when the petition is filed. Additionally, the six-month period in which the child resided with the person must have ended within 90 days before the petition was filed. Unfortunately, this section only applies if the parent to whom the stepparent was married dies. It does not give the stepparent any rights while the parent is still living.
However, the Texas Supreme Court recently rendered a decision that could give a stepparent the right to seek custody or visitation even if the parent is living. In the Interest of H.S., involving grandparents who had acted as caregivers for their grandchild, revolved around Texas Family Code § 102.003(9), a different section of the statute referenced above. This section is not dependent upon the biological parent being deceased. Instead, it confers standing in a lawsuit involving custody or visitation on someone “who has had actual care, control, and possession of the child for at least six months.” As with the other section, the six-month period must end within 90 days before the filing.
This provision is not new, but in the past, some courts interpreted it to require the person to have exclusive control of the child. It would be difficult for a stepparent to meet that standard except in rare cases. The Supreme Court, however, held that the statute did not require the person to have exclusive control of or ultimate legal authority over the child. Instead, a person meets the requirements of “actual care, control, and possession of the child” if they “served in a parent-like role” for the required time period by living in the same principal residence as the child, taking care of the child’s daily needs, and giving “guidance, governance, and direction” similar to what a parent would do from day to day.
It is important to note that the law and the case only address who has standing to petition for custody and visitation. They do not address whether custody or visitation will be granted to a non-parent. The case does not change the requirement that a parent be appointed managing conservator unless the court finds such an appointment would “significantly impair the child’s physical health or emotional development.…” Stepparents still have significant hurdles to overcome, but they should now at least have access to the court to seek rights to the child.
If you are considering a divorce and are concerned about losing your relationship with your stepchildren, you should consult with an experienced Texas child custody attorney. McClure Law Group can advise you on your rights and help you through the divorce process. Call us at 214.692.8200 to discuss your case.