TABLE OF CONTENTS
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
NO. XXXXXXX
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IN THE INTEREST OF
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IN
THE DISTRICT COURT
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XXXXXXXXXX
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XXXTH
JUDICIAL DISTRICT
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A CHILD
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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.
·
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 possession of
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
absence. Indeed, this is the very cornerstone of the doctrine of Section
§102.003(9,) Texas
·
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.
·
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.
Jones v. Fowler, 969 S.W.2d 429 (Tex. Ct.
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
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.
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 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.
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.
[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
[7] Trotter, 311 S.W.2d at 729; McDonald, 267
S.W. at 1076
[9] Id at 939.
[13] Tex. Tex. Tex.
[14] Id at 446
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