Family Code § 102.003(a)(9) Grandparent Standing – 2025 Amendment not Retroactive| In re Olsen (2026)

In re Olsen, 12-26-00260-CV, October 14, 2026.

On appeal from 173rd District Court of Henderson County, Texas

Synopsis

Grandparent standing to intervene in a SAPCR is determined when the intervention is filed. Because the grandparents intervened before the 2025 amendment to Texas Family Code § 102.003(a)(9), they were required to establish six months of actual care, control, and possession—not exclusive care, control, and possession—and the amended statute did not apply retroactively.

Relevance to Family Law

In re Olsen is important in custody and modification litigation involving grandparents, relatives, and other nonparents who exercised substantial caregiving responsibilities before the 2025 amendment. The decision directs litigators to identify the precise filing date of the intervention, apply the statutory version governing that filing, and avoid importing the current exclusivity requirement into a pre-amendment case. In divorce-related SAPCRs, a nonparent’s standing can materially affect conservatorship, possession, geographic restrictions, temporary orders, discovery, and trial strategy, even though the standing determination does not resolve the merits of the nonparent’s requested conservatorship. The opinion has no direct effect on characterization or division of marital property, but it may significantly change the parties and issues litigated in the custody component of a divorce or post-divorce modification.

Case Summary

Fact Summary

Lauren Marie Olsen and Todd Struck divorced after a jury trial concerning conservatorship of their two children. The January 2025 divorce decree named Mother and Father joint managing conservators and granted Father the exclusive right to designate the children’s primary residence.

In April 2025, Mother filed a petition to modify the parent-child relationship. She alleged that Father had voluntarily relinquished actual care, control, and possession because his mother had maintained physical possession of the children for at least six months. Mother also asserted that Father had executed an authorization agreement granting caregiving authority to the children’s paternal grandparents and Father’s sister. Mother simultaneously sought transfer of the case based on the children’s residence in Henderson County.

Four days after Mother filed the modification, the paternal grandparents intervened and requested appointment as the children’s sole managing conservators. They later obtained emergency relief based on allegations that one child had made an outcry concerning abuse by Mother’s boyfriend. Mother and the grandparents subsequently agreed to temporary conservatorship orders under which they served as temporary joint managing conservators and Father served as temporary possessory conservator.

The grandparents amended their intervention in January 2026. Mother then moved to strike the intervention and dismiss the grandparents’ claims, arguing that they lacked standing both when they filed the original intervention in 2025 and when they filed the amended intervention in 2026. Her challenge relied in part on the 2025 amendment to Family Code § 102.003(a)(9), which added a requirement that the claimant’s care, control, and possession be “exclusive.”

The trial court rejected Mother’s standing challenge. Mother sought mandamus relief, but the Twelfth Court of Appeals denied the writ.

Issues Decided

• Whether the grandparents’ standing was measured when they filed their original petition in intervention or under circumstances existing when they later amended that pleading.

• Whether former Texas Family Code § 102.003(a)(9) required the grandparents’ actual care, control, and possession to be exclusive.

• Whether the 2025 amendment adding an exclusivity requirement applied to an intervention filed before the amendment’s effective date.

• Whether the trial court clearly abused its discretion by refusing to strike the grandparents’ intervention for lack of standing.

Rules Applied

Standing is a component of subject-matter jurisdiction and presents a question of law reviewed de novo. A party without standing cannot invoke the trial court’s jurisdiction, and dismissal is ordinarily required when statutory standing is absent. See Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845, 848–49 (Tex. 2005), and In re H.S., 550 S.W.3d 151, 155 (Tex. 2018).

An intervenor generally must possess the standing necessary to maintain an original action. When standing is created by statute, the statutory language supplies the governing framework, and the claimant must plead and establish facts within that language. See In re T.H., 650 S.W.3d 224, 236 (Tex. App.—Fort Worth 2021, no pet.); In re K.D.H., 426 S.W.3d 879, 883 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); and In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, pet. denied).

An intervenor’s standing is measured when the intervention is filed. A later assessment of whether the intervenor will prevail on conservatorship is distinct from whether the intervenor had the right to enter the litigation. See In re Shifflet, 462 S.W.3d 528, 537 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

In evaluating standing, the court construes the pleadings in the claimant’s favor while also considering relevant jurisdictional evidence. See Jasek v. Texas Department of Family & Protective Services, 348 S.W.3d 523, 527, 531 (Tex. App.—Austin 2011, no pet.).

When the grandparents intervened, former § 102.003(a)(9) authorized a person other than a foster parent to file suit if the person had “actual care, control, and possession” of the child for at least six months, with that period ending not more than 90 days before filing. The statutory text did not require that the care, control, and possession be exclusive.

The 2025 amendment added an express exclusivity requirement. The Legislature, however, directed that the amendment apply only to a SAPCR filed on or after the amendment’s effective date and that a SAPCR filed before that date remain governed by the prior law.

Because Mother sought mandamus relief, she also had to establish a clear abuse of discretion for which no adequate appellate remedy existed. A trial court abuses its discretion when it incorrectly analyzes or applies the law, but the relator bears the burden of establishing entitlement to the extraordinary remedy.

Application

The court began with the operative event: the grandparents filed their petition in intervention on April 15, 2025. Their standing therefore had to be determined under the law governing that filing, not under the law in effect when they amended the intervention in January 2026 or when Mother later filed her motion to strike.

Former § 102.003(a)(9) required six months of actual care, control, and possession ending within the statutory 90-day window. It did not include the word “exclusive.” The court therefore declined to read an exclusivity element into the former statute. The possibility that Father or another caregiver also exercised parental authority did not, by itself, defeat standing under the statutory version applicable to the grandparents’ intervention.

The litigation record also placed the grandparents’ caregiving role squarely at issue. Mother’s own modification pleading alleged that Father’s mother had maintained physical possession of the children for at least six months. The pleadings further addressed the authorization agreement through which Father had granted caregiving authority to the grandparents and another relative. Those circumstances supported application of the former actual-care, control, and-possession standard, even if the grandparents’ role was not exclusive.

The grandparents’ 2026 amended intervention did not restart the standing clock or subject the original intervention to a statutory requirement that did not apply when they entered the case. Treating the amended pleading as controlling would effectively give the 2025 amendment retroactive effect, contrary to the Legislature’s transition provision.

The court accordingly concluded that the trial court did not clearly abuse its discretion by refusing to strike the intervention. The court’s conclusion concerned the grandparents’ right to participate in the SAPCR; it did not establish that they were entitled to sole managing conservatorship or any other ultimate relief.

Holding

Standing was measured as of April 15, 2025, when the grandparents filed their original petition in intervention. Their later amended pleading did not require the court to reevaluate standing under a statutory version that became applicable after the intervention.

Former Texas Family Code § 102.003(a)(9) did not require exclusive care, control, and possession. A claimant could satisfy the former statute by establishing the required six-month period of actual care, control, and possession even if a parent or another person retained or exercised some overlapping authority.

The 2025 amendment’s exclusivity requirement did not apply retroactively to the grandparents’ pre-amendment intervention. The Legislature’s transition language preserved the former law for a SAPCR filed before the amendment’s effective date.

Because the trial court applied the proper statutory framework and did not clearly abuse its discretion in finding standing, the Twelfth Court of Appeals denied mandamus relief.

Practical Application

The first task in any nonparent-standing dispute is to construct a filing-date timeline. Counsel should identify when the underlying SAPCR was filed, when the nonparent intervened, when any amended intervention was filed, and when the relevant statutory amendment became effective. In re Olsen demonstrates that the original intervention date may control even when the standing challenge is litigated after the law changes.

For pre-amendment interventions, counsel should resist attempts to convert “actual care, control, and possession” into “exclusive care, control, and possession.” Evidence that a parent remained involved does not necessarily negate standing under the former statute. The relevant inquiry is whether the nonparent actually performed the functions reflected in the statutory language for the required period.

For cases governed by the amended statute, exclusivity is now a central evidentiary issue. Counsel should investigate where the child lived, who made medical and educational decisions, who provided daily supervision, who exercised discipline, and whether a parent concurrently performed those functions. A generalized assertion that the child “stayed with” a grandparent will rarely provide the precision needed to address exclusivity.

A parent’s pleadings can become significant jurisdictional evidence. Mother’s allegation that the grandmother had possessed the children for at least six months supported the grandparents’ standing position. Before pleading voluntary relinquishment or extended nonparent possession as grounds for modification, counsel should assess whether those allegations may furnish a factual basis for intervention.

Finally, standing should not be conflated with the merits. Establishing standing permits the grandparent or other nonparent to litigate; it does not establish entitlement to managing conservatorship. Once standing is resolved, parental presumptions, the child’s best interest, material-and-substantial-change requirements, and any applicable heightened nonparent standards remain separate issues.

Checklists

Determine the Controlling Statutory Version

• Identify the date the underlying SAPCR was filed.
• Identify the date the nonparent filed the original intervention.
• Identify the effective date of each relevant statutory amendment.
• Review the amendment’s transition provision rather than assuming current law controls.
• Determine whether a later amended pleading relates to an existing intervention or asserts a materially new claim.
• Preserve copies of the statutes in effect on each potentially relevant filing date.

Establish Former § 102.003(a)(9) Standing

• Calculate the alleged six-month period precisely.
• Confirm that the qualifying period ended no more than 90 days before the intervention.
• Document where the child slept and maintained personal belongings.
• Identify who provided daily supervision, meals, transportation, and discipline.
• Gather school, daycare, medical, and activity records identifying the caregiver.
• Obtain authorization agreements, powers of attorney, and caregiver designations.
• Secure testimony from neutral witnesses familiar with the caregiving arrangement.
• Address overlapping parental involvement without conceding that exclusivity was required.
• Distinguish temporary visitation or assistance from actual care, control, and possession.

Litigate Exclusivity Under the Amended Statute

• Determine whether the amended version of § 102.003(a)(9) governs the suit.
• Develop evidence showing who exercised day-to-day decision-making authority.
• Analyze whether a parent maintained concurrent possession or regularly resumed primary care.
• Obtain communications reflecting delegation or retention of parental authority.
• Examine financial support, medical consent, school enrollment, and emergency-contact records.
• Prepare to explain any shared-care arrangement and its effect on statutory exclusivity.
• Avoid relying solely on labels such as “primary caregiver” or “lived with the grandparents.”

Challenge Nonparent Standing

• File the jurisdictional challenge promptly.
• Attack both the pleadings and the jurisdictional evidence when appropriate.
• Use a verified timeline to test the six-month and 90-day requirements.
• Determine whether the alleged facts show actual caregiving or merely frequent possession.
• Identify evidence that the parent retained day-to-day care and decision-making authority.
• Apply the statutory version governing the intervention, not simply the current statute.
• Separate statutory standing arguments from merits-based conservatorship arguments.
• Request clear findings or a ruling identifying the statutory basis for standing.

Avoid Pleading Admissions

• Review all modification allegations for statements concerning voluntary relinquishment.
• Verify the duration of any alleged grandparent or nonparent possession.
• Consider whether alleging six months of nonparent care may facilitate intervention.
• Avoid overstating a nonparent’s role when narrower, accurate allegations will support the requested relief.
• Reconcile pleadings with authorization agreements and prior temporary orders.
• Prepare an explanation for any pleading that appears to admit the statutory elements of nonparent standing.

Preserve the Record for Mandamus Review

• Obtain a written ruling on the motion to strike or plea to the jurisdiction.
• Ensure the intervention, amended pleadings, exhibits, and relevant orders are included in the record.
• Include the reporter’s record from the standing hearing.
• Preserve arguments concerning the applicable statutory version and transition clause.
• Identify the jurisdictional facts that are disputed and those that are established.
• Address both mandamus requirements: clear abuse of discretion and lack of an adequate appellate remedy.

Citation

In re Olsen, No. 12-26-00260-CV, slip op. (Tex. App.—Tyler Oct. 14, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion in In re Olsen.

~~3466b68a-c2ed-4f92-9096-d52d54f83abb~~