Non-Parental and GrandParent Rights for Visitation in Texas

The question of who has standing to bring an original suit affecting the parent-child relationship seeking managing conservatorship is a threshold issue before a non-parent or grandparent can file suit in Texas to seek some sort of visitation or access to a child or children. In re SSJ.-J, 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex. App.-Tyler 1993, no writ).

Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Rupert v. McCurdy, 141 S.W.3d 334, 338 (Tex. App.-Dallas 2004, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993)). Standing focuses on who is entitled to bring an action and is determined at the time suit is filed in the trial court (in other words, this must be met before suit can be filed). See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); Rupert, 141 S.W.3d at 340. A party's standing to pursue a cause of action is a question of law (or only for a judge to decide and not a jury). Rupert, 141 S.W.3d at 338. A court deciding a plea to the jurisdiction should consider evidence and review the substance of the legal claims only to the extent necessary to determine whether subject-matter jurisdiction over the case exists. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

Section 102.003(a)(9) of the Texas Family Code provides that “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 of the filing of the petition” may file an original suit requesting managing conservatorship. See Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon Supp. 2007). “In computing the time necessary for standing under Subsections (a)(9), (11), and (12) the court may not require that the time be continuous and uninterrupted, but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit.” Tex. Fam. Code Ann. § 102.003(b) (Vernon Supp. 2007).

A “principal residence” is:

(1) a fixed place of abode;

(2) occupied consistently over a substantial period of time;

(3) which is permanent rather than temporary.

See Doncer v. Dickerson, 81 S.W.3d 349, 362 (Tex. App.-El Paso 2002, no pet.) (citing Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 150 (1951) (articulating elements of residence under general venue statute)). A determination of standing under this section is necessarily fact specific and resolved on an ad hoc basis. Doncer, 81 S.W.3d at 362.

As a matter of case example, and in the case of M.P.B., a Child, the Grandmother of the child filed suit when M.P.B. was twenty-one-months old. M.P.B. lived with Mother at Grandmother's house for about three months before moving to a nearby apartment with her mother. After that time, M.P.B. continued to have her own room at Grandmother's house and spent significant periods of time with Grandmother. In her testimony, the Grandmother explained that M.P.B. spent more time at Grandmother's house than she did at Mother's apartment. Grandmother also testified that M.P.B. spent every weekend of her life at Grandmother's. In the grandmother's testimony at trial, she indicated that the weekends “may start on Thursday or they may start on Friday. We always go through Sunday and we would always have her one other night during the week on a Wednesday.” The facts in this case also showed tht M.P.B. was with Grandmother at her house when the Mother was killed in the house fire. Grandmother further testified that if she was off of work for spring break or for vacation in the summer or Christmas break, that M.P.B. wass always with her. According to Grandmother's testimony, M.P.B. spent more time at her house than at Mother's apartment. Grandmother also testified she was significantly involved in raising M.P.B., in that she clothed her, taught her to do her ABC's and to spell her name, and was “as much a primary caregiver, if not more” than Mother. This pattern was from M.P.B's birth until Mother's death. Having thus met her burden, the trial court's order appointing M.P.B.'s grandmother as the non-parent primary joint managing conservator and Father as a parent joint managing conservator was affirmed.

Texas District Courts' General Jurisdiction in Family Law Adoption Matters

Texas district courts are courts of general jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000). Moreover, article five, section eight of the Texas Constitution provides that a district court’s jurisdiction “consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.” Tex. Const. art. V, § 8; see also Kazi, 12 S.W.3d at 76.

The government code further specifies that district courts “may hear and determine any cause that is cognizable by courts of law or equity and may grant any relief that could be granted by either courts of law or equity.” Tex. Gov’t Code Ann. § 24.008 (West 2004). In other words, district courts sometimes have overlapping jurisdiction to hear cases recognizable in law or equity. Unless the legislature or Congress has provided that a claim be heard elsewhere, district courts are presumed to have subject matter jurisdiction over a claim. Kazi, 12 S.W.3d at 75. Further, the modern trend is to “‘reduce the vulnerability of final judgments to attack on the ground that the tribunal lacked subject matter jurisdiction.’” Id. at 76 (quoting Restatement (Second) of Judgments § 11 cmt. E, at 113 (1982)). Lastly, the Texas Family Code specifically authorizes district courts to issue adoption orders. See Tex. Fam. Code Ann. § 162.016 (West 2002).