By John Millard & Walter Armatys
For years, many Texas family lawyers treated nonparent standing as a front-end issue. If standing survived the initial pleadings or an early hearing, it was assumed to be settled for the remainder of the case. However, recent changes to the Texas Family Code – and two significant appellate opinions – show that assumption is no longer safe.
Standing in a nonparent SAPCR is not just important at the outset. It is now more fragile, more dangerous to ignore, and more likely to undo a case late in the process.
Two recent cases – one decided by mandamus and one after a jury trial – underscore the same principles: standing is jurisdictional, it cannot be waived, and it can undo an entire case late in the process, even when everyone involved believes they are acting in the child’s best interest.
I. Standing Is Jurisdictional – And Always Has Been
Texas courts have been remarkably consistent on this point: standing is a threshold jurisdictional requirement. Without it, what happens? The trial court lacks subject-matter jurisdiction, and you can’t even touch the merits!
The Supreme Court said it plainly in In re H.S.:
“Without standing, a court lacks subject-matter jurisdiction over the case, and the merits of the plaintiff’s claims thus cannot be litigated or decided.”
Courts of appeals have reiterated this same rule for years. Moreover, standing may be raised for the first time on appeal. It cannot be waived by silence, trial by consent, agreement, or strategy. And orders entered without jurisdiction are void – not merely voidable.
This matters because jurisdiction is not something parties can create by agreement, including a Mediated Settlement Agreement. Courts may be sympathetic. Judges may believe a result is fair. Jurors may even return verdicts grounded in best interest. But none of that matters if the court never had jurisdiction to act.
As one court put it bluntly, “equity cannot confer jurisdiction where none exists.”
II. The First Standing Change: Expanding Who May File
In 2025, the Legislature expanded who may file certain nonparent SAPCRs. Texas Family Code §102.004(a) now provides:
“A grandparent, or another relative of the child related within the fourth degree of consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.”
For the first time, standing extends beyond grandparents, aunts, and uncles to include fourth-degree relatives – specifically, a child’s great-grandparents, great-aunts, great-uncles, and first cousins – who previously could not file at all.
Lawyers who once turned away certain nonparent cases may now see viable filing options where none existed before. But clearing the courthouse door is not the same as staying inside.
The new statutory expansion answers only one question: who may file.
It does not answer the more important question: who may remain in the case once filed.
III. The Second Standing Change: Section 102.0031 – A New Jurisdictional Gatekeeper
Enacted during the same legislative cycle, Texas Family Code §102.0031 imposes a mandatory screening requirement on every nonparent who files or intervenes in a SAPCR case.
The statute requires a sworn affidavit alleging specific facts showing that denial of the requested relief would significantly impair the child’s physical health or emotional development.
If the affidavit is legally insufficient, the trial court lacks subject-matter jurisdiction and must dismiss the case. This is not a pleading formality. It governs standing.
Importantly, the Legislature made this jurisdictional screening requirement applicable to both new filings and cases already pending. Section 102.0031 applies to any SAPCR pending in a trial court on or after September 1, 2025, or filed on or after that date. Pending cases were not grandfathered under the prior law.
As a result, nonparents in ongoing cases were required to satisfy the affidavit requirement after September 1, 2025, to maintain standing.
This change significantly heightens the risk in long-pending nonparent SAPCRs. A case that was once viable under prior law can now face jurisdictional dismissal if the affidavit fails to allege concrete facts demonstrating significant impairment.
IV. In re S.N.: Standing Can Be Lost Mid-Case
In re S.N., decided by the Fort Worth Court of Appeals in December 2025, illustrates how a nonparent’s standing can collapse long after a case has been filed.
The decision did not turn on Texas Family Code §102.0031 or its affidavit requirement. Instead, the court applied long-standing standing principles and preexisting statutory standards to reaffirm a critical point: standing is not frozen at filing and may be lost while a case is pending.
In the case, the nonparent had originally filed suit years earlier under a prior standing statute and had obtained multiple rulings recognizing her standing. The case had been pending for years and had been before more than one trial judge.
After §102.0031 took effect, the nonparent amended her pleadings and filed an affidavit. The affidavit was lengthy and emotionally detailed, describing the relationship with the child, the bond they shared, and the emotional harm allegedly caused by the loss of contact.
That was not enough.
Relying on long-standing grandparent-access cases interpreting nearly identical statutory language, the court held that allegations of love, bonding, and emotional distress – without concrete facts demonstrating significant impairment – do not satisfy the standing requirement.
The court also rejected the argument that standing was insulated by prior rulings. Standing, the court explained, is not locked in by early determinations. A party may lose standing while a case is pending, and establishing standing at the outset does not guarantee standing throughout the litigation.
Mandamus issued, and the case was dismissed for lack of jurisdiction
V. O.H.R.S.: Lack of Standing Raised After Trial
If In re S.N. shows how standing can unravel mid-case, In the Interest of O.H.R.S. demonstrates how devastating a standing failure can be when it surfaces only after trial.
The case arose from a DFPS proceeding. After parental rights were terminated, competing nonparent conservatorship claims were tried to a jury. The jury returned a verdict, and a final judgment was entered.
It was only on appeal that the standing issue came into focus.
The appellees argued that standing had been waived because it was not raised earlier in the case. The court rejected that argument outright. Standing, the court explained, is jurisdictional. It cannot be waived and may be raised for the first time on appeal.
The court then reviewed the evidence and concluded that the statutory requirements had not been met. The affidavits were conclusory. The proof was insufficient. As a result, the trial court never had jurisdiction to decide the conservatorship claims.
The court acknowledged the trauma the child had already endured and expressed reluctance to cause further instability. Nevertheless, it dismissed the case, reiterating that courts cannot act without jurisdiction – even when doing so feels inequitable.
The judgment was reversed.
Sidebar: Why an Agreed MSA Won’t Save You
One of the most dangerous assumptions in nonparent cases is this: if the case settles, standing problems disappear.
That assumption is wrong.
Again, standing is jurisdictional. Jurisdiction cannot be created by agreement. Parties cannot stipulate to standing, and a mediated settlement agreement cannot cure a lack of subject-matter jurisdiction.
If a standing defect is identified while the trial court retains plenary power, the court must dismiss the case, even if the parties have mediated and reached agreement.
Because standing defects deprive the court of jurisdiction, orders entered without standing are void, not merely voidable. As a result, jurisdictional problems may surface late, including on appeal.
For mediators and lawyers, the takeaway is simple: mediation is not a shield against standing defects. Mediating a case without jurisdiction risks wasted time, unenforceable agreements, and additional instability for children.
VI. Why This Matters in Mediation
These cases present a hard truth for mediators and lawyers alike. There is temptation in nonparent cases with shaky standing facts to push forward with mediation in the hope that agreement will avoid jurisdictional risk.
That approach is dangerous.
Jurisdiction cannot be created by agreement. Courts cannot approve orders they lack power to enter. And standing defects can surface late, sometimes even after trial.
The end result? The parties spend the entirety of the litigation and the expenses incurred, plus a full day hammering out a deal, only for it to crumble weeks later when a standing defect surfaces. It’s heartbreaking, especially for the kids.
VII. So What Should Lawyers and Mediators Be Doing Now?
Before mediating any SAPCR involving a nonparent, counsel and mediators should:
• Identify the precise standing statute relied upon
• Confirm whether §102.0031 applies
• Review the mandatory affidavit critically, not sympathetically
• Look for concrete facts, not conclusions
• Recognize that expanded consanguinity does not eliminate jurisdictional screening
Addressing these issues early promotes efficient mediation and avoids investing time and resources in cases that may later be dismissed for lack of standing.
VIII. Conclusion
The Legislature expanded who may file a nonparent SAPCR, while simultaneously imposing a new jurisdictional screening requirement that governs cases filed on or after September 1, 2025.
Recent appellate decisions confirm that standing is no longer a settled, front-end issue. It is a continuing requirement – one that can end a case entirely, even years after it began, and even after mediation or trial.
This is not a technicality to be ignored. It is a landmine that even mediation cannot fix.
Lawyers and mediators who account for it will avoid wasted proceedings and negotiate from a position grounded in legal reality rather than assumption.
Armatys Millard is Here to Help
With experience on the family bench and decades of active family law practice, we have seen cases fail not because of bad intentions or poor advocacy, but because legal issues surfaced too late in the process.
Our mediation practice reflects an understanding of threshold legal requirements and procedural constraints, and of the practical consequences when those issues remain unresolved. Where such concerns may exist, early recognition allows counsel and parties to evaluate whether mediation is appropriate and, if so, to proceed with a clear understanding of the legal framework within which any agreement must operate.
In cases where legal prerequisites or jurisdictional considerations may be in question, mediation grounded in legal reality helps avoid wasted proceedings and promotes outcomes the court has authority to enforce.
