Non-Parent and Grandparent Rights to Child 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.