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STANDING for the NOT-SO-NUCLEAR FAMILY AIMEE PINGENOT [email protected] Goranson Bain, PLLC 8150 North Central Expresswa

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STANDING for the NOT-SO-NUCLEAR FAMILY AIMEE PINGENOT Apingenot@Gbfamilylaw.Com Goranson Bain, PLLC 8150 North Central Expresswa STANDING FOR THE NOT-SO-NUCLEAR FAMILY AIMEE PINGENOT [email protected] Goranson Bain, PLLC 8150 North Central Expressway, Suite 1850 Dallas, Texas 75206 (214) 373-7676 Collin County Bar Association April 26, 2012 TABLE OF CONTENTS I. Scope of Article ........................................................................................................................................ 1 II. What is Standing? ..................................................................................................................................... 1 A. Common Law .................................................................................................................................... 1 B. Specific Statutory Authority .................................................................................................................. 1 C. Parental Presumption ............................................................................................................................. 2 III. Standing Provisions, Organized by Client ............................................................................................ 2 A. Grandparents ...................................................................................................................................... 2 1. General Standing for Conservatorship Under Texas Family Code §102.003 ................................... 2 2. Standing Under Texas Family Code §102.004 .................................................................................. 3 3. Standing to Intervene ......................................................................................................................... 4 4. Possession and Access by a Grandparent Under the ―Grandparent Access Statute‖ ........................ 5 B. Siblings .................................................................................................................................................. 6 1. Managing Conservatorship ................................................................................................................ 6 2. Possessory Conservatorship .............................................................................................................. 6 3. Access ................................................................................................................................................ 6 C. Aunts, Uncles, and Other Relatives within the Third Degree of Consanguinity .................................. 7 1. Definition of Consanguinity .............................................................................................................. 7 2. Both Parents Deceased ...................................................................................................................... 7 3. Living Parent(s) ................................................................................................................................. 8 4. Possessory Conservatorship .............................................................................................................. 8 D. Stepparents ......................................................................................................................................... 8 1. Deceased Parent ................................................................................................................................. 8 2. Living Parents .................................................................................................................................... 9 E. Non-relative ........................................................................................................................................... 9 F. Foster parents ...................................................................................................................................... 11 1. Family Code 102.003(a)(12) ........................................................................................................... 11 2. Family Code 102.004(b) .................................................................................................................. 11 3. Family Code 102.003(c) .................................................................................................................. 11 G. Prospective Adoptive Parent Standing ............................................................................................ 12 1. Family Code 102.003(a)(14) ........................................................................................................... 12 2. Family Code 102.0035 .................................................................................................................... 12 3. In the Interest of S.S.G. ................................................................................................................... 12 H. Same Sex couples ............................................................................................................................ 13 1. Family Code 102.003(a)(9) ............................................................................................................. 13 2. Same Sex Adoption ......................................................................................................................... 16 I. Designated Guardian: Connecting the Probate Code to the Family Code .......................................... 17 J. Standing to Adjudicate Parentage ....................................................................................................... 17 IV. Challenging Standing .......................................................................................................................... 18 V. Appendix A, Texas Family Code Standing Provisions ....................................................................... 19 A. Chapter 102 ...................................................................................................................................... 19 B. Chapter 153 ......................................................................................................................................... 21 C. Chapter 156 ......................................................................................................................................... 22 D. Chapter 160 ...................................................................................................................................... 23 i Under the Texas Constitution, the standing I. Scope of Article requirement is also derived from the open courts Standing is a mandatory requirement, but provision, which contemplates access to the courts fitting your case to one of the many options under only for those litigants suffering an injury. the Family Code can be complicated. The goal of Specifically, the open courts provision provides: this paper is to discuss how to apply standing ―All courts shall be open, and every person for an requirements from a client-based perspective. The injury done him, in his lands, goods, person or paper is organized by type of person seeking reputation, shall have remedy by due course of standing (e.g., grandparent, aunt, foster parent), law.‖2 together with the relevant statutes and caselaw Because standing is a component of subject applying to each. The paper was designed to matter jurisdiction, it cannot be waived and may provide useful information, organized by how be raised by any party or by the court on its own you’re most likely to need to access it. motion. The issue of standing may even be raised for the first time on appeal. II. What is Standing? Standing is determined at the time suit is filed Standing is an issue that family law in the trial court.3 Standing to sue does not mean practitioners frequently encounter in a very a right to win, but merely a right to be heard in practical way. While knowing the explicit court.4 requirements of the Family Code is key, it can be useful to have an understanding of the abstract A. Common Law legal doctrines underlying the requirement of The general test for standing in Texas requires standing. The Texas Supreme Court opinion in the that there (a) shall be a real controversy between 1 the parties, which (b) will be actually determined Texas Ass'n of Business v. Air Control Bd. case 5 contains a thorough discussion of the sources of by the judicial declaration sought. Standing the standing requirement, which is summarized requires the claimant to demonstrate a below: particularized injury distinct from that suffered by Standing is a feature of subject matter the general public—there must be an actual grievance, not a hypothetical or generalized jurisdiction, which is essential to the authority of a 6 court to decide a case. Subject matter jurisdiction grievance. This general test incorporates the is never presumed and cannot be waived. The requirements that courts may only decide real standing requirement stems from two limitations cases or controversies brought by a person who on subject matter jurisdiction: the separation of has suffered an actual injury. powers doctrine and the open courts provision. B. Specific Statutory Authority The separation of powers doctrine stems from In family cases, it is usually obvious that there both the United States and Texas constitutions. is a real controversy, but the difficult part of the Under this doctrine, governmental authority vested test is determining which groups of people should in one branch of government cannot be exercised qualify as persons who have suffered an injury. by another, unless
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