Fighting Custody in Texas: US 2026 Rules for Non-Parents

What changed in Texas standing rules for non-biological parents?

The central change is that many non-parents must now show they had exclusive care and control of the child, instead of simply sharing day-to-day care with a parent, in order to have "standing" to file a custody case. Courts also now scrutinize non-parent cases more aggressively at the outset, using a detailed Affidavit of Standing to decide whether the case can even go forward. As a result, many step-parents and grandparents who would have qualified a few years ago no longer can get their foot in the courthouse door.

Texas child custody law is governed by the Texas Family Code, especially Chapter 102 (who can file a Suit Affecting the Parent-Child Relationship, or SAPCR). Historically, non-parents could get standing by showing they had "actual care, control, and possession" of the child for a certain amount of time, even if a parent also lived in the home.

Recent statutory amendments and court decisions have tightened this. Courts now look for proof that the non-parent functioned as the primary and often exclusive caregiver for a qualifying period, and they more frequently reject cases where the biological parent was also in the home and parenting. On top of that, the Family Code now requires or strongly encourages use of a sworn Affidavit of Standing detailing those facts, and judges can dismiss the case based on the affidavit alone without a hearing.

• Old approach (more flexible): Non-parent could often establish standing if they lived with the child and shared daily care, even in a multi-adult household.
• New approach (stricter): Non-parent usually must show a period of exclusive or near-exclusive care and control, often while the parent was absent, unable, or effectively out of the picture.
• Practical impact: Step-parents who helped raise a child while married to the biological parent, and grandparents who shared care while the parent was around, now have a much harder time filing custody suits.

What does "exclusive care and control" mean under the updated Texas Family Code?

"Exclusive care and control" generally means that, for the qualifying period, the non-parent was the one making the day-to-day decisions and handling the child's needs, without a parent actively sharing or supervising that role. Occasional visits, short stays, or shared parenting in the same household usually will not meet this standard. Judges look at how the family actually functioned, not just whose name is on a lease or school form.

How this differs from the old "actual care, control, and possession" rule

• Old rule: It was enough that the non-parent had "actual care, control, and possession" of the child for a period (often at least 6 months ending within 90 days of filing), even if:
  • A parent also lived in the home, and
  • Caregiving was shared (school drop-off, meals, homework, medical appointments).
• New focus on exclusivity: Courts now look for evidence that:
  • The non-parent was the primary decision-maker for the child.
  • The parent was absent, incarcerated, missing, seriously impaired, or effectively uninvolved.
  • The child depended almost entirely on the non-parent for shelter, food, education, and medical care.

Practical examples of exclusive vs non-exclusive care

• Likely exclusive care:
  • Grandparents take in a child for a full school year while the parent is in rehab out of state, and they handle all school, medical, and financial support.
  • An aunt raises a child for 2 years while both parents are incarcerated, with no meaningful parental involvement beyond occasional letters or calls.
• Likely not exclusive care:
  • Step-parent and biological parent live together; both attend school events and medical appointments, and the parent remains actively involved.
  • Grandparents provide daily after-school care, meals, and overnight stays several times a week, but the parent still lives nearby and retains primary decision-making.

Key factors Texas judges weigh

• Who signed school forms and made educational decisions
• Who chose doctors and authorized medical treatment
• Who provided most financial support (rent, food, clothing)
• Who the child identified as the person "in charge" when something important happened
• Where the parents were living and how involved they actually were day-to-day

If a parent was consistently present in the home and acting like a parent, it is very difficult for a non-parent to prove "exclusive" care and control under the new, tighter reading of the law.

How do the new rules affect step-parents seeking custody or visitation?

Most step-parents who raised a child together with the biological parent will no longer qualify for non-parent standing based solely on living in the home and helping raise the child. Because the parent was present and parenting, courts rarely see the step-parent's role as "exclusive care and control." Step-parents now must rely on very specific fact patterns or different legal paths such as adoption, intervention in an existing case, or written agreements.

Why step-parents are especially affected

• Shared parenting is the norm: In a typical step-family, the biological parent and step-parent both:
  • Attend school meetings
  • Take the child to the doctor
  • Provide discipline and routine
  This looks like shared, not exclusive, care.
• Legal preference for biological parents: Texas law presumes a fit parent has the superior right to custody over any non-parent, including a devoted step-parent.
• Standing must come first: Courts will not even weigh "best interest of the child" in favor of the step-parent unless standing is established. The new rules keep many cases from ever reaching that stage.

When a step-parent might still get standing

A step-parent might still qualify under the more demanding standards if facts show the biological parent was essentially out of the parenting role for a sustained period.

Examples that may support standing (fact-intensive and not guaranteed):

• The biological parent:
  • Was deployed, incarcerated, or out of the country for a year or more, and
  • Had little to no meaningful involvement with the child during that time, while
  • The step-parent single-handedly managed all aspects of the child's life.
• The parent struggled with severe addiction or mental illness and:
  • Was physically present in the home but not functioning as a caregiver, and
  • Evidence shows the step-parent made all major decisions and provided all real care.

Alternative paths for step-parents in Texas

• Stepparent adoption:
  • Available when the other biological parent is deceased, has rights terminated, or is willing to relinquish rights.
  • Gives the step-parent full legal parental status, stronger than any conservatorship order.
• Intervening in an existing case:
  • If a custody or termination case is already open (for example CPS or a divorce), a step-parent may seek to "intervene" instead of filing a brand new suit.
  • The court still applies standing rules, but intervention can sometimes be easier to justify where the step-parent's relationship is central to the child's stability.
• Contractual visitation agreements:
  • Parents can voluntarily agree in writing to preserve a step-parent's visitation after divorce or death.
  • Such agreements are not as strong as court-ordered rights, but they can provide structure and reduce conflict.

How do the new rules affect grandparents and other relatives?

Grandparents and other relatives now face stricter limits on when they can bring custody lawsuits in Texas. They generally must either prove a period of exclusive care and control or fit a narrow statutory ground, such as significant impairment to the child if the parent keeps custody. Informal or shared caregiving arrangements, no matter how long, often do not meet these requirements.

Common grandparent scenarios that often do not qualify

• Grandparents who:
  • Watch the child daily after school
  • Have the child most weekends and holidays
  • Provide financial support and housing help for the parent
  but the parent still lives nearby and remains the legal decision-maker.
• Relatives who:
  • Take the child for extended summer visits
  • Share a multi-generational household
  • Help with homework, discipline, and activities
  but the parent is active in the home.

Under the new, stricter reading of standing rules, these arrangements rarely amount to "exclusive" care and control, even if the grandparents feel like they are doing almost all of the work.

When grandparents may still have standing

Grandparents might still establish standing if:

• They had exclusive care and control:
  • The child permanently lived with them without a parent for a significant period (often at least 6 months, fact-specific).
  • They made all key decisions for school, health, and daily life.
• Or they meet a special statutory ground, for example:
  • The parent is unfit or presents a serious danger, and
  • The child would suffer significant physical or emotional harm if left in the parent's care.

Courts apply these exceptions narrowly, often requiring detailed evidence such as medical records, school reports, CPS history, and witness testimony. Bare accusations or disagreements with the parent's choices usually do not suffice.

What is the "Affidavit of Standing" and what must it include?

An Affidavit of Standing is a sworn statement that a non-parent must file with a Texas custody petition explaining exactly how they qualify to bring the case under the Family Code. Judges can read this affidavit before anything else and dismiss the case outright if it does not show clear legal standing. For non-parents, a strong, detailed affidavit is now essential.

Purpose of the Affidavit of Standing

• To prevent non-meritorious custody suits by non-parents
• To save time and cost by screening cases before full hearings
• To lock in the non-parent's version of key facts under oath, subject to perjury penalties

Core elements your affidavit should cover

While exact requirements depend on the statutory ground you rely on, most non-parent affidavits should clearly state:

• Your relationship to the child (step-parent, grandparent, aunt, etc.)
• Precise time frames:
  • When the child lived with you
  • How long that period lasted (dates, not just "about a year")
  • Whether this period ended no more than 90 days before filing, if that rule applies
• Why your care was exclusive or primary:
  • Where the parents were during that time
  • How involved (or uninvolved) the parents were in daily decisions
  • Specific responsibilities you handled: school, health care, daily routine, financial support
• Any special statutory grounds you rely on, such as:
  • Significant impairment to the child in the parent's care
  • History of family violence, neglect, or substance abuse
• Attached exhibits that support your claims (school records, medical records, CPS documents, written agreements, etc.)

Sample comparison: strong vs weak affidavits

Technical requirements

• Must be sworn before a notary or otherwise properly verified under Texas law.
• Must be filed with your Original Petition, not added casually later in most non-parent cases.
• False statements can expose you to perjury charges and damage your credibility in any later hearings.

What are the main Texas statutes and authorities that control non-parent custody cases?

Non-parent custody cases in Texas are mainly governed by Chapter 102 of the Texas Family Code, which defines who has standing to file a SAPCR. Other Family Code chapters and Texas courts' interpretations further restrict non-parent rights, usually in favor of fit parents. Understanding these statutes before filing is critical.

Key statutory areas

• Texas Family Code, Chapter 102:
  • Defines which non-parents may file custody cases and under what conditions.
  • Contains the "actual care, control, and possession" provisions that are now read more narrowly toward exclusivity.
  • Includes provisions for grandparents and certain relatives to seek managing or possessory conservatorship.
• Best interest of the child standard:
  • Located throughout the Family Code, it guides custody decisions.
  • However, courts only reach this analysis after standing is established; you never get to argue best interest if you lack standing.
• Constitutional parental rights:
  • United States Supreme Court and Texas appellate decisions emphasize a parent's fundamental right to raise their child.
  • These cases influence how strictly Texas courts interpret non-parent standing statutes.

Relevant authorities and agencies

• District Courts and Statutory County Courts:
  • Handle most SAPCR and custody cases in Texas.
  • Have discretion in interpreting "exclusive care and control" based on the facts.
• Texas Department of Family and Protective Services (DFPS/CPS):
  • May involve relatives and non-parents when a child is removed from a parent due to abuse or neglect.
  • Relatives may get placement or be considered for conservatorship within CPS cases, sometimes under somewhat different standing rules.

Because the law is complex and regularly interpreted in new appellate decisions, getting current guidance from a Texas family lawyer in your specific county is essential before relying on a statute by its number alone.

What is the process for a non-parent to file a custody case in Texas under the new rules?

A non-parent must first determine whether they clearly meet a statutory standing ground, then prepare a detailed Affidavit of Standing, and only then file the Original Petition in the correct Texas court. After filing, the court will often review standing before allowing the case to proceed to temporary orders or trial. Weak standing cases can be dismissed early, sometimes without any evidentiary hearing.

Step-by-step process

1. Identify your standing theory
   • Review the Family Code provisions that could apply to your situation (for example, exclusive care period, grandparent significant impairment exception, etc.).
   • Be honest about whether your facts really fit after the recent tightening of the law.
2. Gather evidence
   • School enrollment and attendance records showing your address and your role.
   • Medical records listing you as responsible party or emergency contact.
   • Rental agreements, utility bills, or tax records showing the child lived with you.
   • Any written communications where the parent acknowledged you as the child's primary caregiver.
3. Draft the Affidavit of Standing
   • Lay out a clear timeline with dates.
   • Explain where each parent was and what they were doing during the relevant period.
   • Connect your facts directly to the statutory language you rely on.
4. Prepare and file the Original Petition
   • Identify all parents and anyone else with court-ordered rights to the child.
   • Specify what you are asking for (for example, joint managing conservatorship, primary residence, visitation schedule).
   • Attach the Affidavit of Standing and any required exhibits.
5. Serve all required parties
   • Arrange formal service of citation on each parent and existing conservator.
   • Use a sheriff, constable, or private process server as approved by Texas rules.
6. Address standing challenges
   • Parents often respond with a motion to dismiss based on lack of standing.
   • The court may decide standing on written filings or set a limited hearing.
7. Proceed to temporary orders and final hearing (if standing is found)
   • Only after surviving the standing stage will the court consider the child's best interests, parenting plans, and long-term orders.

Typical costs in Texas non-parent custody filings

Costs can escalate quickly in contested cases, so confirming that you truly have standing before filing can save significant money and emotional strain.

When should you hire a Texas family lawyer about non-parent custody?

You should speak with a Texas family lawyer before you file anything with the court if you are a step-parent, grandparent, or other non-parent considering custody. The new standing rules are technical and unforgiving, and a short consultation can tell you whether you realistically have a path forward. You should also hire counsel immediately if a parent has already moved to dismiss your case for lack of standing.

Situations where a lawyer is especially critical

• Borderline standing facts:
  • You shared a household with a parent and helped raise the child, but are unsure whether your care was "exclusive."
• Complex family histories:
  • Prior CPS cases, criminal records, multiple moves, or informal custody swaps across state lines.
• Parents vigorously object:
  • The parent is already represented and is threatening sanctions or fees if you proceed.
• Need for emergency relief:
  • You believe the child is in immediate danger and need to know if you can seek emergency orders as a non-parent.

How a lawyer can help under the new rules

• Analyze your facts against the most recent Texas cases interpreting standing.
• Draft a detailed Affidavit of Standing that addresses likely objections.
• Explain realistic outcomes and alternatives, such as:
  • Stepparent adoption
  • Voluntary agreements with parents
  • Intervening in an existing divorce or CPS case instead of filing a standalone suit
• Represent you at any standing hearing and respond to motions to dismiss.

What are your next steps if you are a step-parent or grandparent in Texas?

Your next steps are to get a clear-eyed assessment of whether you truly meet the new standing rules, gather concrete evidence of your caregiving role, and explore alternatives if a full custody case is not realistic. Acting early, while records and memories are fresh, will give you the strongest possible position if you do qualify. Even if you cannot file a lawsuit, you may still be able to protect your relationship with the child through other legal or practical tools.

Action checklist

• 1. Write your timeline
  • List where the child lived and with whom, month by month, for the last 2-3 years.
  • Note when you were the primary or exclusive caregiver, if ever, and where the parents were.
• 2. Collect documents
  • School, medical, housing, and financial records tying the child to your home and your decisions.
  • Any written agreements, texts, or emails where parents acknowledged your caregiving role.
• 3. Schedule a consultation
  • Contact a Texas family law attorney in the county where the child lives.
  • Bring your timeline and documents so the lawyer can quickly assess standing.
• 4. Consider alternatives
  • Ask about stepparent adoption, especially if one biological parent is absent or willing to relinquish rights.
  • Discuss written visitation agreements or parenting plans the parents might voluntarily sign.
  • Explore intervening in existing cases instead of starting a new suit.
• 5. Protect the child relationship informally when needed
  • Maintain calm, respectful communication with parents where possible.
  • Avoid threats of "taking the child" that might cause parents to cut off contact.

Texas has deliberately made it harder for non-parents to bring custody cases, especially where a parent is present and functioning. The more carefully you prepare your facts and strategy in light of the new "exclusive care and control" standard and Affidavit of Standing requirement, the better your chances of either moving forward effectively or avoiding an expensive case the court will never hear.