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When can a Non-Parent File a Suit for Custody in Texas?

by | Mar 7, 2022 | Firm News

As the old saying goes “It takes a village to raise a child”. It is not uncommon for non-parents to assists in the care and raising of children. If you find yourself in a situation where you as a non-parent would like to file a suit for custody of a child, but do not know what your rights are, please read below.

Standing

Under Texas law, a person must have “standing” before they can file a lawsuit. Standing is the ability to file a suit. To have standing to file an original suit for a child custody, you must meet certain qualifications under Texas law. Under Texas law, a non-parent, other than a foster parent has standing to file an original suit affecting the parent child relationship, if the person

  1. has had actual care of the child that is subject of the suit;
  2. has had control of the child; and
  3. possession of the child for at least six months ending not more than 90 days before the date of the filing of the petition.

The non-parent has the burden of proving that they meet the qualifications listed above. Additionally, the non-parent must also overcome the fit parent presumption.

Actual Care

A non-parent seeking custody of a child must prove that they had actual care of the child. Texas law and case law have established that actual care is more than providing actual babysitting or childcare services. A non-parent must prove to the court that they provide care for the child, as if the child was their biological child. A nonparent can provide evidence of the care they provided by showing evidence of their routine, witness statements, school records, etc.

Control

A non-parent seeking custody of a child in Texas, must prove that they had actual control over the child. Case law has defined actual control as the actual power or authority to guide or manage or the actual restricting of the child, without regarding to whether the non-parent has actual legal authority.  A non-parent can prove that they had control of the child by showing evidence of their history of making decisions on behalf of the child without the consent of the biological parents.

Possession for at Least Six Months

Under Texas law, the non-parent seeking custody must have had possession of the child that is subject to the suit for at least six months not more than ninety days before filing the suit. Texas law and Texas case law has established that the six months’ time frame must be continuous. You cannot have possession of the child for two months, not see the child for four months and then have possession again for four months, and file suit calming standing based on the prior two months before the gap in possession and the four months after the gap.

The non-parent has the burden of providing the court with evidence that they have had possession of the child for at least six continues months ending not more than ninety days before filing suit. They will need to provide evidence to the court in the form of witness statements, lease documents, school documents, and additional information that proves your possession time.

Fit Parent Presumption

Under Texas law, there is a legal presumption that it is in the child’s best interest to be raised by his or her biological parent, unless the court finds that appointment of the parent or parents would not be in the best interest of the child, because the appointment would significantly impair the child’s physical health or emotional development. To overcome the fit parent presumption, the non-parent will need to show the court evidence that the child being raised by their biological parents would significantly impair the child’s physical and emotional development. The non- parent can prevent evidence of the biological parents parenting, biological parents’ criminal history, Child Protective Services involvement, etc.

Overview

Under Texas law, a non-parent has the burden to prove that they have standing to file a suit for conservatorship and possession of a child. To meet their burden, a non-parent must prove to the court that they had actual care and possession of the child for at least six months not ending more than ninety days before filing the lawsuit. If they have standing, the non-parent must still overcome the fit parent presumption.

Contact our attorneys today if you or someone you know needs help obtaining legal custody of a child that is not biologically theirs.