Section 102.004(a) Excludes Great-Uncles From SAPCR Standing | In re K.D.H. (2026)

In re K.D.H., 11-26-00240-CV, October 22, 2026.

On appeal from 1st Multicounty Court at Law, Nolan County

Synopsis

Former Texas Family Code Section 102.004(a) did not give a maternal great-uncle standing to seek managing conservatorship because a great-uncle is related to the child within the fourth degree of consanguinity, not the statutorily required third degree. The mother’s consent, failure to object, and participation in the SAPCR could not create statutory standing or subject-matter jurisdiction; the court of appeals conditionally granted mandamus relief requiring vacatur of the temporary conservatorship orders and dismissal of the great-uncle’s claims.

Relevance to Family Law

In re K.D.H. is a threshold-jurisdiction decision with immediate consequences for custody litigation involving extended family members. Before litigating significant impairment, parental fitness, or the child’s best interest, counsel must establish that the nonparent falls within an applicable statutory standing provision as of the date the original petition was filed. A compelling factual case for nonparent conservatorship cannot substitute for statutory standing.

The decision is particularly important in divorce and post-divorce custody disputes in which a relative intervenes, files an original SAPCR, or seeks emergency temporary orders. A parent cannot confer standing by agreement, temporary placement of the child, an agreed order, a litigation concession, or failure to object. Nor may a petitioner ordinarily cure a failure to satisfy a time-based standing requirement by retaining possession of the child and filing an amended petition after the statutory period has elapsed. Because temporary SAPCR orders are generally not subject to interlocutory appeal, mandamus may be the necessary vehicle for prompt appellate review.

Case Summary

Fact Summary

K.D.H. became pregnant with N.R.H. at age sixteen. After the child’s birth, the mother and child lived with the maternal grandmother, M.G.H., who helped care for the child. When the grandmother became ill and was hospitalized, her brother, R.M.G., and his wife became involved. The mother ultimately allowed the child to live temporarily with R.M.G., the child’s maternal great-uncle.

R.M.G. took possession of the child in June 2024. On October 22, 2024—approximately four months later—R.M.G. and his wife filed an original SAPCR seeking appointment as managing conservators. They alleged that appointing the child’s parents as managing conservators would significantly impair the child’s physical health or emotional development and relied on their status as the child’s maternal great-uncle and great-aunt.

At the November 2024 temporary-orders hearing, the trial court struck the wife’s pleadings and dismissed her from the suit. The mother did not then challenge R.M.G.’s standing under Section 102.004(a) and affirmatively indicated that there was no dispute over whether he was related to the child within the third degree of consanguinity. The trial court found that appointing the parents as conservators would presently and significantly impair the child and appointed R.M.G. managing conservator and the mother possessory conservator.

More than a year later, the mother moved to dismiss and filed a plea to the jurisdiction. She argued that R.M.G. lacked standing under Sections 102.003, 102.0031, and 102.004 of the Texas Family Code. R.M.G. then amended his petition to allege that the child had remained in his sole care, custody, and control since June 22, 2024.

The trial court denied the jurisdictional challenge. Its findings included that R.M.G. was related to the child within the fourth degree of consanguinity, that the mother previously had consented to his standing, and that his amended pleading contained no defect preventing the suit from continuing. The court subsequently signed written temporary orders incorporating its earlier conservatorship rulings and expressly finding standing and jurisdiction.

The mother sought mandamus relief directing the trial court to vacate the conservatorship orders and dismiss R.M.G.’s claims.

Issues Decided

• Whether R.M.G. had standing under former Texas Family Code Section 102.003(a)(9), even though he had exercised actual care, control, and possession of the child for only approximately four months when he filed his original SAPCR petition.

• Whether a maternal great-uncle is related to a child within the third degree of consanguinity and therefore qualifies for standing under former Section 102.004(a).

• Whether the mother’s consent, litigation representations, failure to make an earlier objection, or delay in seeking mandamus relief could supply or waive statutory standing.

• Whether mandamus was available to correct temporary conservatorship orders entered in a SAPCR over which the trial court lacked subject-matter jurisdiction.

Rules Applied

Former Section 102.003(a)(9) granted standing to a person, other than a foster parent, who had exercised actual care, control, and possession of the child for at least six months, with that period ending not more than 90 days before the petition was filed. The relevant period is measured as of the filing of the petitioner’s original pleading, rather than a later amended pleading.

Former Section 102.004(a) allowed a relative within the third degree of consanguinity to seek managing conservatorship upon satisfying the statute’s additional requirements. Once the petitioner established the required degree of relationship, the petitioner also had to show either that the child’s present circumstances would significantly impair the child’s physical health or emotional development or that the child’s parents filed the petition or consented to the requested appointment.

Texas Government Code Section 573.023 governs the computation of degrees of consanguinity. Under that method, a great-uncle is related to a great-niece or great-nephew within the fourth degree, not the third degree.

The court also applied the principle that SAPCR standing is statutory and implicates subject-matter jurisdiction. Subject-matter jurisdiction cannot be created through consent, waiver, estoppel, or a party’s failure to object. Courts review standing and statutory interpretation de novo.

Mandamus requires a clear abuse of discretion and the absence of an adequate appellate remedy. A trial court abuses its discretion when it incorrectly analyzes or applies the law. Mandamus is ordinarily available to challenge temporary SAPCR orders because Texas Family Code Section 105.001(e) makes those orders interlocutory and not subject to interlocutory appeal.

The court noted that the Legislature amended Sections 102.003(a)(9) and 102.004(a), effective September 1, 2025. Because the underlying SAPCR was filed on October 22, 2024, the court applied the statutes in effect on the original filing date.

Application

R.M.G. could not establish standing under former Section 102.003(a)(9). He took possession of the child in June 2024 and filed his original SAPCR petition approximately four months later. The statute required at least six months of actual care, control, and possession. Although the child remained with him long enough to exceed six months before he filed an amended petition, the later accrual of additional time did not retroactively create standing. The court measured the statutory period from the date of the original petition.

Section 102.004(a) likewise did not provide standing. The trial court expressly found that R.M.G. was related to the child within the fourth degree of consanguinity. That finding defeated, rather than supported, standing under the former statute because the statute was limited to relatives within the third degree. As the child’s maternal great-uncle, R.M.G. fell outside the defined class of relatives authorized to proceed.

The mother’s consent did not change the analysis. Under former Section 102.004(a), parental consent was relevant only after the petitioner qualified as a relative within the third degree. Consent could satisfy one of the statute’s alternative additional conditions; it could not eliminate or expand the threshold kinship requirement.

Nor did the mother’s earlier representation, participation in the case, or delay in raising the issue confer jurisdiction. Statutory standing concerns the trial court’s subject-matter jurisdiction and cannot be established by a party’s concession or failure to object. Thus, the trial court could not rely on consent, estoppel, or litigation conduct to exercise jurisdiction that the Family Code did not grant.

Finally, the absence of an interlocutory appellate remedy made mandamus appropriate. Leaving the temporary managing-conservatorship orders in place would permit a nonparent without statutory standing to continue exercising rights under orders entered without subject-matter jurisdiction.

Holding

The Eleventh Court of Appeals held that R.M.G. lacked standing under former Section 102.003(a)(9). He had actual care, control, and possession of the child for only approximately four months when he filed his original petition, and the additional time that passed before his amended petition did not cure that defect.

The court further held that former Section 102.004(a) did not confer standing on R.M.G. A maternal great-uncle is related to the child within the fourth degree of consanguinity, while the statute required a relationship within the third degree.

The court held that the mother’s consent, prior representation, failure to object, and delay could not create statutory standing or subject-matter jurisdiction. Parental consent does not expand the class of relatives authorized to sue under Section 102.004(a).

The court conditionally granted the petition for writ of mandamus. It directed the trial court to vacate the temporary orders granting R.M.G. managing conservatorship and to dismiss his claims for lack of standing.

Practical Application

Counsel representing a nonparent should identify and plead every potentially applicable standing provision before filing. The facts supporting standing should be verified independently, including the precise family relationship, the dates on which care and possession began, whether possession was continuous, and the date on which the original petition will be filed. The merits of conservatorship do not become relevant until statutory standing has been established.

In kinship cases, practitioners should prepare a family tree and calculate consanguinity under the Government Code rather than relying on colloquial descriptions such as “close relative” or “like a grandparent.” Under the former version of Section 102.004(a) applied in this case, the difference between the third and fourth degree was jurisdictionally dispositive.

Attorneys should also distinguish consent to an appointment from consent to jurisdiction. A parent’s agreement may be relevant to a statutory condition expressly identified by the Legislature, but the parties cannot use consent to expand the statute’s threshold class of authorized petitioners. An agreed temporary order does not insulate the case from a later jurisdictional challenge.

For parent-side counsel, standing should be tested at the outset—before an evidentiary temporary-orders hearing produces a status quo that becomes difficult to unwind. Obtain the original petition and determine whether the alleged facts established standing on the filing date. If standing is absent, consider a plea to the jurisdiction, a motion to dismiss, and a request that the trial court refrain from entering or enforcing temporary orders.

Practitioners should not assume that an amended petition cures a time-based standing deficiency. If the original petition was filed before the required possession period accrued, allegations based on post-filing possession may be insufficient. Counsel should analyze whether a new suit is legally available rather than relying on relation back or amendment.

When a trial court enters temporary SAPCR orders despite a dispositive standing defect, mandamus should be evaluated promptly. Although subject-matter jurisdiction cannot be supplied by delay, unnecessary delay can complicate equitable mandamus arguments and prolong an unauthorized custodial arrangement.

Finally, counsel must confirm which statutory version governs. In re K.D.H. applies the law in effect when the SAPCR was filed in October 2024. For petitions filed on or after September 1, 2025, practitioners should analyze the amended statutory language rather than treating this decision’s construction of the former statute as the end of the inquiry.

Checklists

Evaluate Nonparent Standing Before Filing

• Identify whether the proposed action is an original SAPCR, intervention, modification, or request for conservatorship.
• Identify each statutory provision that could independently confer standing.
• Confirm the statutory language in effect on the anticipated filing date.
• Determine whether the petitioner must satisfy a kinship requirement, possession period, affidavit requirement, or other statutory prerequisite.
• Plead specific jurisdictional facts rather than merely alleging that standing exists.
• Preserve documents and testimony establishing the relevant facts as of the original filing date.
• Do not rely on significant impairment or best-interest evidence as a substitute for standing.

Calculate Consanguinity

• Prepare a family tree linking the petitioner to the child.
• Identify the common ancestor.
• Calculate the degree of consanguinity under Texas Government Code Section 573.023.
• Distinguish grandparents, aunts and uncles, great-grandparents, great-aunts and great-uncles, siblings, and cousins.
• Attach or offer competent evidence of the relationship if it may be disputed.
• Confirm that the statutory provision covers the calculated degree, not merely that the petitioner is a “relative.”
• Analyze the statute currently in effect; do not assume the former third-degree limitation remains controlling in a later-filed case.

Audit Possession-Based Standing

• Determine the exact date actual care, control, and possession began.
• Calculate the period through the date of the original petition.
• Confirm whether the care and possession were sufficiently continuous and substantial.
• Determine whether the required period ended within the statute’s prescribed prefiling window.
• Collect school, medical, childcare, residence, and financial-support records.
• Identify parental involvement that may undermine an assertion of actual care, control, and possession.
• Do not count post-filing possession to cure a deficiency existing when the original petition was filed.
• Calendar the earliest date on which the statutory period will be satisfied before filing.

Challenge Standing for a Parent

• Obtain all original and amended pleadings.
• Analyze standing as of the date the original petition was filed.
• Compare each pleaded fact with every element of the cited standing statute.
• Verify the alleged degree of consanguinity.
• Verify the duration and nature of possession.
• Identify any required affidavit and determine whether it was timely and properly filed.
• File a plea to the jurisdiction or motion to dismiss as early as practicable.
• Request express rulings on each asserted basis for standing.
• Object to temporary relief entered without proof of standing.
• Ensure the reporter’s record and documentary evidence preserve the jurisdictional issue.

Use Parental Consent Correctly

• Identify the precise statutory element to which consent is relevant.
• Confirm that all threshold statutory requirements are independently satisfied.
• Do not characterize consent as creating standing.
• State in agreed orders that no party purports to confer subject-matter jurisdiction by agreement.
• Avoid concessions concerning kinship or standing without independently verifying the facts and governing statute.
• Advise the client that participation in temporary proceedings does not necessarily eliminate a later jurisdictional challenge.
• Separate consent to the child’s temporary placement from consent to conservatorship or to the filing of a SAPCR.

Prepare for Mandamus Review

• Determine whether the challenged order is interlocutory and nonappealable.
• Obtain a signed written order memorializing the challenged ruling.
• Request findings or clarification concerning the trial court’s standing analysis when appropriate.
• Assemble a complete mandamus record, including all relevant pleadings, exhibits, orders, and hearing transcripts.
• Explain why ordinary appeal is unavailable or inadequate.
• Identify the trial court’s legal error under the applicable standing statute.
• Request specific relief, including vacatur of unauthorized temporary orders and dismissal of claims filed without standing.
• Seek mandamus promptly to avoid delay-based equitable arguments.

Citation

In re K.D.H., No. 11-26-00240-CV, slip op. (Tex. App.—Eastland Oct. 22, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion in In re K.D.H.

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