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Click here for the full text of this decision FACTS:This case involves the standing of a party to pursue a suit affecting the parent-child relationship (SAPCR). Wesley McCurdy and Mary Alicia Rupert moved in together shortly after their child, J.C.D., was born in 1999. Three years later, Rupert filed a petition for divorce, saying she and McCurdy had a common-law marriage. McCurdy answered, denying the existence of a marriage, but also saying that if the trial court did find the existence of marriage, then that property be divided accordingly. Neither party mentioned J.C.D. The trial court issued an order saying there was no common law marriage, thereby denying Rupert’s petition for divorce. The order included a “mutual injunction” for communication between the two, as well as a “mutual injunction relaxed to allow visitation” between McCurdy and J.C.D. Two weeks later, McCurdy filed a motion for new trial, reversing his original position and stating that a common-law marriage did exist. He also said that J.C.D. had been in his care, custody and control for over three years, and that he had standing under Family Code �102.003(a)(9) to be named possessory conservator of J.C.D. The trial court vacated its earlier order, entering a new order naming Rupert temporary sole managing conservator and McCurdy temporary possessory conservator. The trial court set out a general visitation schedule, subject to the parties’ modification. Three years later, at a hearing to make the temporary orders permanent, Rupert moved to dismiss the action, arguing that McCurdy had no standing to bring a suit affecting the parent-child relationship. McCurdy testified that he, Rupert and J.C.D. lived together as a family until January 1999, that he first came to court to assert standing to file his suit on Aug. 2, 1999, and that he paid child support. Meanwhile, Rupert testified that for the three or four months after she and McCurdy broke up, McCurdy saw the child on occasion. The trial court granted McCurdy’s motion, granting him rights to J.C.D. In its findings of fact, the trial court found that McCurdy had actual care, control and possession of J.C.D. for more than six months, and that McCurdy had first sought visitation with J.C.D. within 90 days of separation. HOLDING:Affirmed as modified in part; vacated in part. The court characterizes Rupert’s argument on appeal that there is no evidence to support the trial court’s determination that McCurdy had standing to pursue SAPCR-related relief. Even if the findings of fact are correct, Rupert argues that the trial court’s conclusion of law as to whether McCurdy had standing to file a SAPCR or raise parent-child issues as a counterclaim in the divorce action under �102.003(a)(9) is incorrect as a matter of law, and thus that the trial court had no jurisdiction to order possessory conservatorship and visitation. The court examines the party’s pleadings to determine when the issue of J.C.D.’s custody first arose. Even though Rupert’s original petition alleged that there was no child of the marriage, and even though neither her petition nor McCurdy’s original answer raised any child-related issues, the record shows that the issue of McCurdy’s visitation with J.C.D. was brought up early in the divorce proceeding. McCurdy’s motion for new trial contained at least a statement in plain and concise language that he was wanting to be named J.C.D.’s possessory conservator. However, the motion did not otherwise meet the requirements of Family Code �102.008, which governs the contents of a petition and all other documents in a SAPCR. Further, McCurdy never filed a pleading or amended pleading meeting those requirements, or alleging or seeking to allege a SAPCR. Nonetheless, the court ultimately concludes that it need not decide whether McCurdy’s motion for new trial could be construed as a SAPCR because, even if it were, McCurdy did not meet the requirements for standing under �102.003(a)(9). He would have had to have had actual care, control and possession of J.C.D. for not less than six months before he filed the petition. Though the section should not be applied mechanistically, the court notes, the six-month period still must immediately precede the filing. Though McCurdy had occasional visitation with J.C.D. in the months between his breakup and the filing of his motion for new trial, occasional visitation or possession is not actual care, control or possession. Nor does the visitation McCurdy had in between the temporary order and the final hearing count. It is undisputed, the court adds, that McCurdy did not file his motion asking to be named J.C.D.’s managing conservator until five months after his and Rupert’s breakup. McCurdy cannot be said, either, to have exercised due deliberate and reasonable speed to file for such relief in a timely manner. The trial court’s order naming McCurdy possessory conservator with rights of visitation is vacated, though the rest of the issues related to the divorce and property division are affirmed. OPINION:: Jim Moseley, J.; Moseley, Richter and Francis, JJ.

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