Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Cedric Johnson and Shanequa Johnson were the parents of SSJ-J, though the couple never married. As part of a court order establishing paternity, Cedric and Shanequa were both appointed joint managing conservators, with Shanequa having the right to establish the child’s primary residence. Shanequa died when SSJ-J was 11. Shanequa’s mother, Beverly Johnson, and stepfather, Charles Johnson, filed an original petition in a suit affecting the parent-child relationship. They sought to be named managing conservators of their granddaughter. In an affidavit attached to the petition, Beverly stated that SSJ-J had lived in her home and under her care since she was born. Cedric filed a plea in abatement, contesting Charles’ and Beverly’s standing to bring suit. Charles filed an amended petition, dropping Beverly as a party. He alleged that it would not be in SSJ-J’s best interest to have Cedric as the sole managing conservator or to have him as joint managing conservator, if he were also given the right to establish SSJ-J’s primary residence. Charles filed an affidavit similar to Beverly’s, and he alleged that placing SSJ-J with Cedric would harm SSJ-J’s physical or emotional health. Beverly then filed a petition in intervention of a grandparent in a SAPCR. She made the same allegations as Charles did, and she filed another affidavit saying it would hurt SSJ-J to be left with Cedric. Cedric filed another plea in abatement and a motion to dismiss. With affidavits from Charles and Beverly and testimony from counsel before it, the trial court granted Cedric’s motion to dismiss for lack of standing. On appeal, Charles and Beverly contend that they have standing to bring suit pursuant to Family Code 102.003(a)(9) which is entitled “General Standing to File Suit.” It provides that an original suit may be filed at any time by 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. Cedric counters that, in addition to meeting 102.003 standing requirement, Charles and Beverly must also meet the requirement of Family Code 153.131, entitled “Presumption That Parent to be Appointed Managing Conservator.” That section provides that, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. HOLDING:Reversed and remanded. The court agrees that Charles and Beverly have automatic standing pursuant to 102.003. The court then points out that despite Cedric’s assertion that Beverly and Charles must also meet the requirements of 153.131, the grandparents actually did make allegations that the child’s mental or physical health would suffer if Cedric were appointed. Of the cases cited by Cedric, the court finds no support for the assertion that Cedric and Beverly were obligated to cite specific examples of how SSJ-J’s physical or mental health had been harmed; a general allegation was sufficient. And in any case, there is also no support for the proposition that Beverly and Charles have to meet 153.131 at all. Meanwhile, cases and legislative history cited by Charles and Beverly does support the argument that they only have to meet the requirements of 102.003. “There is simply nothing in the Family Code, or in cases interpreting the standing provision, that requires a petitioner under section 102.003(a)(9) to allege facts showing that the appointment of the parent would significantly impair the child’s physical health or emotional development in order to have standing. This is an issue that goes to the merits.” The court also finds that Troxel v. Granville, 530 U.S. 57 (2000), does not address standing, but has to do with overcoming the parental presumption in a trial on the merits. OPINION:Angelini, J.; Stone, Duncan and Angelini, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.