COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00102-CV

IN THE INTEREST OF S.D., A CHILD

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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 325-550977-14

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MEMORANDUM OPINION1

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After the same-sex relationship between Appellant S.L.D. and Appellee 

S.M.D. ended, S.L.D. filed suit seeking joint managing conservatorship of S.D., a

child born to S.M.D. through artificial insemination during the relationship. S.L.D. 

based her claim to standing on family code section 102.003(a)(9), which provides 

that “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 

 

1See Tex. R. App. P. 47.4.
2

preceding the date of the filing of the petition,” has standing to bring a suit 

affecting the parent-child relationship. See Tex. Fam. Code Ann. § 102.003(a)(9) 

(West 2014). 2 The trial court granted S.M.D.’s motion to dismiss the suit for lack 

of standing.3

In a single issue, S.L.D. appeals the trial court’s order, arguing, among 

other things, that section 102.003(a)(9) does not require a person to have 

exclusive care, control, or possession of the child to have standing.4 We 

disagree.

We held in M.J.G. that grandparents lacked standing to intervene in their 

daughter and son-in-law’s divorce proceedings to seek custody of their 

grandchildren under section 102.003(a)(9) when, at all times that the children 

 

2

In computing the time necessary for standing under subsection (a)(9), the 

court shall consider the child’s principal residence during the relevant time 

preceding the date of commencement of the suit. Tex. Fam. Code Ann. 

§ 102.003(b). “Principal residence” is a fixed place of abode within the party’s 

possession, occupied or intended to be occupied consistently over a substantial 

period of time, and which is permanent rather than temporary. In re Kelso, 266 

S.W.3d 586, 590 (Tex. App.—Fort Worth 2008, orig. proceeding). The parties 

and the child lived together in the same home until around a month before S.L.D. 

filed suit.

3Standing is a constitutional prerequisite to maintaining a suit under Texas 

law. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 

1993); In re M.J.G., 248 S.W.3d 753, 762–63 (Tex. App.—Fort Worth 2008, no 

pet.).

4S.L.D. also argues that section 102.003(a)(9) contains no requirement 

that the biological parent must be unfit or must abdicate her parental 

responsibilities before a nonparent under section 102.003(a)(9) can attain 

standing. Based on our resolution here, we do not reach these sub-issues. See

Tex. R. App. P. 47.1.
3

lived with the grandparents, the children’s mother also lived there. 248 S.W.3d at 

756–58. The children stayed alone with their grandparents only occasionally or 

temporarily while their mother was at work. Id. Despite the grandparents’ having 

performed day-to-day caretaking duties for the children, there was no evidence 

that the mother did not also care for the children or that she had abdicated her 

parental duties and responsibilities to the grandparents; therefore, we concluded 

that the grandparents did not have “actual care, custody, and control” under 

section 102.003(a)(9). Id. at 758–59; see also In re E.C., No. 02-13-00413-CV, 

2014 WL 3891641, at *2 (Tex. App.—Fort Worth Aug. 7, 2014, no pet.)(mem. 

op.) (holding that grandparents lacked standing under section 102.003(a)(9) 

because they only had exclusive possession of the child for five and a half 

months before filing suit). Likewise, in Kelso, we held that the grandparents did 

not establish standing under section 102.003(a)(9) because they did not show 

that they had actual care, control, and possession of the child when the record 

reflected that the child’s mother controlled where the child would stay and for 

how long and that the grandparents did not have such control. 266 S.W.3d at

591.

The record does not reflect that S.M.D. ever relinquished or abdicated 

permanent care, control, and possession of S.D. to S.L.D.5 Accordingly, we 

 

5S.L.D. testified that she was the parties’ sole provider when S.M.D. was a 

stay-at-home mother and that she would get up with S.M.D. when S.D. woke up 

crying at night; S.L.D. also changed diapers, bought clothing for the child, had 

S.D. “[a] lot of times” during the day when not at work, and helped S.M.D. with 
4

conclude that S.L.D. failed to establish the actual care, control, and possession

necessary to establish standing in this case.6 See E.C., 2014 WL 3891641, at 

*2; Kelso, 266 S.W.3d at 591; M.J.G., 248 S.W.3d at 756–59. We overrule 

S.L.D.’s sole issue and affirm the trial court’s judgment.

PER CURIAM

PANEL: MCCOY,WALKER and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

DELIVERED: December 11, 2014

 

day-to-day child-raising, but she did not take care of S.D. by herself for any 

extended period of time. S.L.D. said that she and S.M.D. had had plans for 

S.L.D. to legally adopt S.D.

S.M.D. testified that there was never a time when she asked S.L.D. to take 

care of the child because S.M.D. was unable to do so and never a time when she 

gave S.L.D. the child and let her make important decisions about the child’s life. 

There is no evidence that S.M.D. failed to care for the child or abdicated her 

parental duties and responsibilities to S.L.D.

6While other courts of appeals might have reached the opposite conclusion

on the same or similar facts, see, e.g., In re B.A.G., No. 11-11-00354-CV, 2013 

WL 364240, at *6, *9–10 (Tex. App.—Eastland Jan. 31, 2013, no pet.) (mem. 

op.); Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 526 

(Tex. App.—Austin 2011, no pet.); In re M.K.S.-V., 301 S.W.3d 460, 461–62

(Tex. App.—Dallas 2009, pet. denied) (op. on reh’g), we are not bound by the 

decisions of our sister courts. Cf. In re I.I.G.T., 412 S.W.3d 803, 807–09 (Tex. 

App.—Dallas 2013, no pet.) (holding nonparent lacked standing under section 

102.003(a)(9) when there was no court order for his possession of the child 

before he filed suit and no equivalent contractual possession schedule and the 

evidence conflicted on whether the parties had an agreement for his regular 

possession of the child and whether the child’s residing with nonparent was 

intended to be a permanent arrangement).