T.W.E. v. K.M.E., 828 S.W.2d 806
Procedural Posture
Appellant putative father sought review of the order of the 25th District Court of Guadalupe County (Texas), which dismissed his counterclaim for custody of a child born during his marriage.
Overview
Appellant putative father was sued in a divorce action. He counterclaimed for custody of a child born during his marriage. Appellee wife's amended petition denied appellant's parentage. The trial court found clear and convincing evidence that appellant was not the child's biological father, and dismissed his custody claim for lack of standing under Tex. Fam. Code Ann. § 11.03 (Supp. 1992). Appellant asserted that he had standing under § 11.03(a)(8), either because he was the child's psychological father, or because he had actual possession and control of the child for more than six months immediately preceding the filing of the divorce petition.
The court found that, although, appellant did not have standing as a biological parent under § 11.03(a)(1), he did have standing to sue for custody under § 11.03(a)(8) because he had actual possession and control of the child for six months immediately before the suit was filed, and the trial court's order was reversed and the matter was remanded for further proceedings.
Outcome
The court reversed the order dismissing appellant putative father's counterclaim for custody of a minor child born during his marriage to the child's mother, and remanded the matter for further proceedings, holding that appellant had standing to seek custody because, although he was not the biological father, he had actual possession of the child for more than six months immediately preceding the filing of the petition.