Sadly, many people are having children out-of-wedlock, sometimes with people that they barely know. It is not unusual for a woman to name several candidates as the potential father of a child and sometimes she does not even know one the men’s name, other than a first name. We even have developed terms for this, referring to the unmarried mother of a man’s child as his “baby’s momma” (shortened often to “baby momma”) and to the father of the child as the mother’s “baby’s daddy” (usually shortened to “baby daddy”).
As society places increasingly heavy burdens on parents, such as hectic schedules, the death of a spouse or even mental health issues, parents are turning more and more to family members and friends to help them in the day to day tasks of raising their children.
This seems to have resulted in an increase in the diversity of people seeking conservatorship, possession of, or access to a child. We had to develop some legal procedure for establishing rights to children, whether as between the “Baby Momma” and “Baby Daddy” or between someone else who actually has possession of the child & is raising it instead of the parents. The solution is what we in Texas call a “Suit Affecting the Parent-Child Relationship”. No one wants to say that over-and-over again, so everyone abbreviates it to “SAPCR” (pronounced “sap-sir”). (On a side note, it is also possible in Texas to file a SAPCR with a married couple who are not ready to divorce, but want to get orders in place concerning the residence of the child, visitation & child support.)
This article focuses on standing for third parties in a SAPCR proceeding and is organized by the type of person seeking intervention. This article is not meant to be an in-depth analysis of general standing rules and principles. If you don’t see your particular situation described here, you should make an appointment to come in and discuss your case with one of our lawyers.
GENERAL STANDING TO FILE A SAPCR
Texas Family Code §102.003 sets forth who is authorized to bring a SAPCR generally. Fourteen (14) separate categories confer standing and allow the following to file a suit at any time. First and foremost, parents (whether married, or not) are authorized to bring a SAPCR.
A child may bring a SAPCR through a representative authorized by the court, such as a guardian or amicus attorney. (A child might do this to get access or visitation with another sibling.) A custodian or person who has the right of visitation with or access to the child appointed by an order of a court of another state or country has the right to file a suit. Guardians, governmental entities, authorized agencies and licensed child placing agencies have standing to file a suit. So does an alleged or presumed father, subject to the limitations set forth in Texas Family Code Chapter 160.
Any person, other than a foster parent or step-parent, who has had the actual care, control and possession of the child for at least six (6) months, has standing to file a suit, as long as the six (6) month period ended not more than ninety (90) days before the date of the filing of the petition.
In addition, a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six (6) months prior to the time the petition is filed, if the guardian, managing conservator or parent is deceased at the time the petition is filed, has standing. So, a step-parent could file a SAPCR if the birth parent with whom he or she lived has died and the step-parent wants to try to keep the children in the home.
Foster parents have standing only if the child has been placed by the Department of Protective and Regulatory Services in the foster parent’s home for at least twelve (12) months ending not more than ninety (90) days preceding the date of the filing of the petition. A person who is a foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child.
The standing to file suit under that subsection applies only to the adoption of a child who is eligible to be adopted. (See, Texas Family Code §102.003(c).) A person designated as a managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161, or to whom consent to adoption has been given in writing under Chapter 162 has standing to bring a lawsuit. If both parents are deceased, a person who is a relative of the child within the third degree of consanguinity, as determined by Chapter 573 of the Government Code, has standing. Persons within the third degree of consanguinity include siblings, grandparents, great-grandparents, aunts and uncles, or cousins. ( See, Texas Government Code §573.002.)
To calculate the six (6) month time provision necessary to confer standing, the court is not required to find that the time was continuous and uninterrupted, but rather must consider where the child’s principal residence was during the six (6) months prior to the 90 days prior to filing suit. (See, Texas Family Code §102.003(b).)
In Texas, there is a strong presumption that the best interest of the child is served if a natural parent is awarded custody. (See, Brook v. Brook, 881 S.W.2d 297,299(Tex. 1994). This parental presumption imposes a heavy burden on a non-parent seeking conservatorship. (See, In re W.G.W, 812 S.W.2d 409, 413 (Tex.App. – Houston [1st Dist.], no writ). The parental presumption may be rebutted by a non-parent if the court finds that appointment of the parent as managing conservator would not be in the best interest of the child because a parental appointment would significantly impair the child’s physical health or emotional development. (See, In re M.W., 959 S.W.2d 661, 665 (Tex.App. – Tyler 1997, writ denied), no writ). The non-parent must “prove by a preponderance of credible evidence that awarding custody to the parent would result in serious physical or emotional harm to the child.” See id.; Brook, 881 S.W.2d at 298. There must be evidence of specific, identifiable behavior that the parent will cause harm to the child. (See, In re M.W., 959 S.W.2d at 665.) Absent such specific evidence, general evidence that a non-parent would be a better custodian of the child is inadequate to rebut the parental presumption. (See, In re W.G.W., 812 S.W.2d at 413.)
In summary, it is POSSIBLE for a non-parent to get custody of children who are not their own, but it is an uphill battle which needs to be accompanied by plenty of prayer!
THE “TYPICAL” SAPCR
Most SAPCRs are filed between the birth parents. Baby Momma generally files to get the Baby Daddy legally recognized as the child’s father. As a result of the suit, DNA testing may be done. In most courts, if a guy is ruled out as the birth father after DNA testing, then the mom has to pay the cost of the test. Once the correct man is identified as the father of the children, the court will issue an order addressing many issues, including these things:
Who has physical possession of the child?
What kind of visitation does the other parent have with the child?
Who pays child support, and how much?
Is the child’s residence going to be restricted to only a small area?
Who has the right to talk to the child’s teachers, doctors, and ministers?
Who will provide health insurance for the child?
Most SAPCRs involve infants or toddlers, but you can actually bring a SAPCR for any age of minor child.
The lawyers at Jane Fowler Law, PLLC are experienced lawyers, who can guide you through your SAPCR case. Please call to make an appointment in order to start the process for you!
This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have. Jane Fowler of Jane Fowler Law, PLLC would be happy to talk with you to discuss your legal options!