Grandmother Had Standing to Seek Custody

Grandmother Had Standing to Seek Custody

 

Grandmother’s son and his fiancée, together with their child, lived in Grandmother’s home for most of the child’s life, and Grandmother took care of most of the child’s needs. The child’s Father and Mother moved to another city, where Father died. Mother and the child then moved in with Mother’s parents and enrolled the child in school. Grandmother filed a custody suit, alleging that she had standing to bring the suit because the child lived with her for the majority of his life until the Father’s death, that she had substantial past contact with the child, and Mother had voluntarily relinquished possession of the child to Grandmother for most of his life.

 

In a preliminary hearing, Mother challenged Grandmother’s standing to bring a custody suit asking for conservatorship of her son. The trial judge agreed, ruled that it did not have jurisdiction over the case, and dismissed Grandmother’s custody suit for lack of standing.

 

Grandmother appealed the trial judge’s ruling. The Court of Appeals ruled that the trial judge should not have dismissed Grandmother’s case. Grandmother presented sufficient evidence at the jurisdiction hearing to raise a fact question as to whether the child was in Grandmother’s care, custody or control for six months ending not more than 90 days before Grandmother filed her suit. Many witnesses testified that while Mother, Father and the child lived in different residences during the child’s life, the child principally lived in Grandmother’s home until Father’s death. Grandmother cared for the child except for brief times when the child was with Mother. Grandmother testified that the child first came to stay with her in fall 2016 and did not cease residing with her until January 2020. Grandmother was the one who changed his diapers, fed him, bathed him, brushed his teeth, washed his clothes, enrolled him and paid for his day care, took him to the pediatrician, drove him to and from school every day and supervised him before and after school every day, helped him with his homework, played with him. Grandmother was the primary caretaker of the child, even when Mother was present. Mother disputed the extent of Grandmother’s care for the child, and testified that she never abdicated control of her child to Grandmother. This evidence raised a factual dispute that the trial judge may not resolve at an early hearing on jurisdiction. The trial judge’s credibility determinations were premature at that stage of the lawsuit.

In the Interest of T.D.L., a Child, No. 04-20-00274-CV (Tex.App. – San Antonio Mar. 17, 2021)

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