In order to file a child custody suit in Texas, a party must have “standing.” Standing is a jurisdictional requirement. If someone files suit without standing, the case should be dismissed. If a court enters an order when someone does not have standing, that order is void. Not just anyone can file a child custody suit. Under the Texas Family Code, the following people have standing to bring a child custody suit:
- A parent whose parental rights have not been terminated;
- A child, through a representative authorized by the court;
- A person with court-ordered visitation rights;
- A guardian of the child’s person or estate;
- A governmental entity (such as the Office of the Attorney General);
- The Texas Department of Family and Protective Services (CPS);
- A licensed child-placing agency;
- A man who alleges he is the biological father of the child;
- A person (other than a foster parent) who has had actual care, control and possession of the child for at least six months;
- A person designated as the managing conservator in an affidavit of relinquishment of parental rights or who has been given consent to adopt the child;
- A person who resided with the child and a recently deceased parent for at least six months ending not more than 90 days before filing suit (commonly referred to as the “step-parent statute,” although the statue is not limited to step-parents);
- A foster parent who has had the child in his or her home for at least 12 months ending not more than 90 days before filing suit;
- A person who is related to the child by blood or adoption within the third degree of consanguinity (ie: brothers, sisters, nieces, nephews, aunts, uncles, grandparents and great grandparents) if the child’s parents are deceased, if the child’s present circumstances are a danger to the child’s physical or emotional health, or if the child’s parents consent; or
- A prospective adoptive parent, if the child’s parent or a pregnant woman has conferred standing to that person.
If a person does not fall into one of the above categories, that person cannot file a child custody suit. Standing can be a complicated issue, and whether or not someone has standing under one of the above provisions is not always as clear cut as you might think. If you are wondering if you can legally file a child custody suit, an experienced family law attorney will be able to look at the specific circumstances of your case and help you make that determination.