legal

BRIEF ON THE MERITS OF RESPONDENT’S PLEA IN ABATEMENT FOR DISMISSAL

This was a very interesting case regarding parental standing:

 

TABLE OF CONTENTS

ARGUMENT

PETITIONER LACKS STANDING TO FILE SUIT ACCORDING TO THE TEXAS FAMILY CODE SECTION §102.003(9).

PETITIONER CANNOT ESTABLISH AN IN LOCO PARENTIS RELATIONSHIP WITH THE CHILD, AND DOES NOT HAVE STANDING TO FILE SUIT.

THE COURT MUST INTERPRET THE WORDS IN SECTION §102.003(9) ACCORDING TO THEIR ORDINARY MEANING AND THE INTENT OF THE LEGISLATURE, AND THUS AGREE THAT PETITION DOES NOT HAVE STANDING TO FILE SUIT.

THE COURT MUST INTERPRET THE WORDS IN SECTION §102.003(9) ACCORDING TO THEIR ORDINARY MEANING AND THE INTENT OF THE LEGISLATURE, AND THUS AGREE THAT PETITION DOES NOT HAVE STANDING TO FILE SUIT.

UNLESS THE COURT FINDS THAT APPOINTMENT OF A PARENT 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.

WE AGREE WITH PRIOR CASE LAW DECISIONS WHICH CONFIRM PETITIONER HAS NO STANDING TO FILE SUIT

CONCLUSION

 

TABLE OF AUTHORITIES

Cases

Coons-Andersen v. Anderson, 104 S.W.3d 630 (Tex. App.-Dallas 2003)……………………………… 4, 7

Massachusetts v. United N. & S. D. Co., 140 Tex. 417, 168 S.W.2d, 226, 229 (Tex. 1942)………… 5

McDonald  v. Texas Employers’ Ins. Ass’n, 267 S.W. 1074, 1076 (Tex. App. 1924)……………… 4, 5

Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)…………………… 5

Trotter, 311 S.W.2d at 729 (persons in loco parentis have “existing justiciable interest” in controversy involving custody of child)…………………………………………………………………………………………………………… 4

Statutes

  • 151.131(a) of the Texas Family Code……………………………………………………………………………….. 6

Tex. Ass’n of Bus. V. Tex. Air Control Bd., 852 S.W.2d 440, 443-44, 36 Tex. Sup. Ct. J. 607 (Tex. 1993)    8

Whitley v. Dallas Area Rapid Transit, 66 S.W.3d, 472, 474 (Tex. App.-Dallas 2001, no pet)……… 8


  1. XXXXXXX
IN THE INTEREST OF § IN THE DISTRICT COURT
§
XXXXXXXXXX § XXXTH JUDICIAL DISTRICT
§
A CHILD § XXXXX COUNTY, TEXAS

 

 

BRIEF ON THE MERITS OF RESPONDENT’S

PLEA IN ABATEMENT FOR DISMISSAL

 

 

Respondent respectfully asserts that this Honorable Court should dismiss, without further testimony, Petitioner’s Original Petition, which lacks any and all grounds for standing to file suit according to the Texas Family Code.

ARGUMENT

PETITIONER LACKS STANDING TO FILE SUIT ACCORDING TO THE TEXASFAMILY CODE SECTION §102.003(9).

  • Section 102.003(9) of the Texas Family Code identifies who has general standing to file suit, this subsection specifically stating:

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.

  • Petitioner has not had six months of actual care, control, and possessionof the child as the statute states and as the legislature intended when composing this subsection, as the Respondent, biological mother, also lived in the home with the child and assumed all parental duties.

PETITIONER CANNOT ESTABLISH AN IN LOCO PARENTIS RELATIONSHIP WITH THE CHILD, AND DOES NOT HAVE STANDING TO FILE SUIT.

  • Under common law, a person in loco parentis to a child has the same rights, duties, and liabilities as the child’s parents.[1] These rights included, in appropriate circumstances, having as a party in a lawsuit involving custody of the child.[2]
  • Being in loco parentis is, however, by its very nature, a temporary status.[3]
  • The in loco parentis relationship arises when a non-parent assumes the duties and responsibilities of a parent and normally occurs when the parent is unable or unwilling to care for the child.[4] The doctrine will not apply in circumstances where one is asking to be held in loco parentis despite the fact the mother was actually caring for the child.
  • An alleged contractual agreement to share parenting duties, even if proven, cannot alone serve to confer the statute of in loco parentis to a child.[5]
  • Texas cases that discuss the doctrine have a central common feature:  the person deemed to be standing in loco parentis had actual care and custody of a child in the parent’s absenceIndeed, this is the very cornerstone of the doctrine of Section §102.003(9,) Texas Family Code.[6]
  • Finally, even noting the Petitioner and Respondent lived together with the child for the first two years of his life, and during that time Petitioner states she cared for the child as if she were a parent, once Respondent and the child moved out, any possible claim Petitioner may have had for standing in loco parentis would have ended.  The common law relationship is temporary and ends when the child is no longer under the care of the person in loco parentis.[7]

THE COURT MUST INTERPRET THE WORDS IN SECTION §102.003(9) ACCORDING TO THEIR ORDINARY MEANING AND THE INTENT OF THE LEGISLATURE, AND THUS AGREE THAT PETITION DOES NOT HAVE STANDING TO FILE SUIT.

  • In order to interpret the words “actual care, control, and possession,” we are required to look to their ordinary meaning.  A court’s primary goal in construing a statute is to give effect to the intent of the legislature, per Tex.Gov’t Code Ann §312.005.[8] In determining this intent, §312.002(a) instructs courts to interpret words in a statute according to their ordinary meaning.[9]
  • Merriam-Webster’s dictionary defines these words as follows, which continues to demonstrate the fact that Petitioner did not have actual care, control, and possession of the child:

o   Actual:  existing in act and not merely potentially; existing in fact or reality.

o   Care:  charge, supervision.

o   Control:  power or authority to guide or manage.

o   Possession:  the act of having or taking into control.

  • The court must follow the ordinary meaning of the statute.  It may impute an implication to a statute only when it is obvious that the legislature intended the implication and no other interpretation can be gathered from the statute as written. Implications are never permitted if they will add to or contradict the statute.[10] Thus, by the required interpretation of the ordinary meaning of the statute, Petitioner lacks standing to file suit.

UNLESS THE COURT FINDS THAT APPOINTMENT OF A PARENT 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.[11]

  • Petitioner is a non-parent, with no legal, blood, or marital ties to the child-subject of this suit.
  • While Petitioner makes allegations in her affidavit attached to her Original Petition that Respondent is allegedly unable to effectively parent the child, her affidavit in whole must be considered null due to the lack of standing to file suit to begin with.
  • Petitioner has failed to demonstrate that any evidence exists from any source to satisfy the need for the court to even consider this as a factor in this suit.

WE AGREE WITH PRIOR CASE LAW DECISIONS WHICH CONFIRM PETITIONER HAS NO STANDING TO FILE SUIT.

Jones v. Fowler, 969 S.W.2d 429 (Tex. Sup. Ct. 1998)

Lesbian mother’s former romantic partner did not have standing because she did not have actual care, control, and possession of child for requisite time before filing suit.

Williams v. Anderson, 850 S.W.2d 281 (Tex. App. Austin – 1993)

Non-parent did not have standing nor a judicial interest in the child as he did not have actual possession and control of the child for at least six months prior to filing his petition.

To satisfy the statutory requirement of six calendar months, Anderson must perforce resort to an interpretation of the statute.  He must argue for a judicial construction of the statute which holds one of two things:  (1) that section includes, by implication, a theory of constructive possession and control, so that Anderson may have said to have had “possession and control” of the child, in legal contemplation, notwithstanding that the child in fact lived in Houston with his mother (who possessed all legal rights regarding the child) during part of the time the child was with him; or (2) that the statute include, by implication, a theory of cumulative months so that a total of six calendar months of “possession and control,” accumulated over an unspecified period of time, will satisfy the statute eve if, as here, there was no period of six consecutive months.  The court believed it would be irrational to impute either implication to this statute.  They may impute to a statute only when it is obvious that the legislature intended the implication and no other interpretation can be gathered as written.  Implications are never permitted if they will add to or contradict the statute.[12]

Concerning the theory of constructive possession and control, the court believed the statute explicitly rejects the theory by the statutory requirement of “actual possession and control.”  The 1983 amendment to this statute, with the added term “actual” defining possession, became the provision at issue in this case.

Coons-Andersen v. Andersen, 104 S.W.3d 630 (Tex. App. Dallas – 2003)

Former partner of biological mother was denied visitation with and custody of the child who was born while the parties lived together in a romantic relationship.  The alleged agreement to share parenting duties with the mother could not alone serve to confer upon the partner the status of in loco parentis to the mother’s child.  Texas courts do not apply the common law doctrine of in loco parentis to grant custodial or visitation rights to a non-parent, against the parent’s wishes, when the parent maintains actual custody of the child.  Texas cases that discuss the doctrine of in loco parentis have a central common feature:  the person deemed to be standing in loco parentis has actual care and custody of a child in the parent’s absence.  Indeed, this is the very cornerstone of the doctrine.

The in loco parentis relationship arises when a non-parent assumes the duties and responsibilities of a parent and normally occurs when the parent is unable or unwilling to care for the child.  The defining characteristic of the relationship is actual care and control of a child by a non-parent who assumes parental duties.  Appellant asked the court to hold she was in loco parentis despite the fact that the child’s mother was actually caring for the child and appellant was not.  Likewise, the partner was not in loco parentis because of occasional visitation after she and the mother separated.  The partner’s temporary status as a person in loco parentis would expire after the mother and child moved out of the home.

The claim was insufficient to raise a fact issue as to whether expenditures the partner made while she and the mother lived together were made with the expectation of remuneration.

CONCLUSION

 

Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law.[13]  The standard of review applicable to subject matter jurisdiction also applies to standing.[14]  Under that standard, the pleader is required to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear the case, which Petitioner has failed to do.  Petitioner DOES NOT meet the qualifications under Section §102.003(9) to file a suit affecting the parent-child relationship as she is not a person who has had actual care, control, and possession of the child-subject of this suit for at least six months ending not more than 90 days preceding the date of the filing of her petition.  During the time Petitioner claims she had actual care, control, and possession of the child, the child was also living with his mother, who maintained custody and actual care, control and possession of him.

In response to Petitioner’s filing Original Petition in Suit Affecting Parent-Child Relationship, Respondent has filed a Plea in Abatement and for Dismissal, challenging Petitioner’s standing to maintain a suit affecting the parent-child relationship.  Dismissal is the proper remedy for lack of subject matter jurisdiction when it is impossible for the petition to confer jurisdiction on the trial court.[15]  Any further proceedings on this matter would be a waste of the court’s resources, as it is clear that Petitioner did not, and does not, have standing to file suit. Therefore, due to the preceding evidence presented, prior case law confirming Respondent’s position, and overall evidence of Petitioner’s lack of standing to file this suit, Respondent requests this suit be DISMISSED.

           

[1] McDonald  v. Texas Employers’ Ins. Ass’n, 267 S.W. 1074, 1076 (Tex. App. 1924)

[2] Trotter, 311 S.W.2d at 729 (persons in loco parentis have “existing justiciable interest” in controversy involving custody of child)

[3] Trotter, 311 S.W.2d at 729; McDonald, 267 S.W. at 1076

[4] Coons-Andersen v. Anderson, 104 S.W.3d 630 (Tex. App.-Dallas 2003)

[5] Id.

[6] Id.

[7] Trotter, 311 S.W.2d at 729; McDonald, 267 S.W. at 1076

[8] Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993)

[9] Id at 939.

[10] Massachusetts v. United N. & S. D. Co., 140 Tex. 417, 168 S.W.2d, 226, 229 (Tex.1942)

[11] §151.131(a) of the Texas Family Code

[12] Massachusetts v. United N.&.S.D. Co., 140, Tex. 417, 168, S.W.2d 226 (Tex. 1942)

[13] Tex. Ass’n of Bus. V. Tex. Air Control Bd., 852 S.W.2d 440, 443-44, 36 Tex. Sup. Ct. J. 607 (Tex. 1993)  

[14] Id at 446 

[15] Whitley v. Dallas Area Rapid Transit, 66 S.W.3d, 472, 474 (Tex. App.-Dallas 2001, no pet)

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