Texas Child Protection Law Bench Book
Updated September 2025
B. Standing to Intervene in a Pending Suit
An original suit requesting possessory conservatorship may not be filed by a grandparent or other relative or other person. However, a grandparent or other relative or other person may intervene in a pending suit under Tex. Fam. Code § 102.003(b-1) or (b-2), as applicable. Tex. Fam. Code § 102.004(b).
A grandparent or other relative of the child within the fourth degree of consanguinity may intervene in a pending suit filed by a person authorized to do so under Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. Tex. Fam. Code § 102.004(b-1).
The court may grant a person, other than a grandparent or other relative of the child within the fourth degree of consanguinity, subject to the requirements of Tex. Fam. Code § 102.004(b-3), if applicable, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under Tex. Fam. Code Chapter 102 if there is satisfactory proof to the court that the appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. The court may not grant a person leave to intervene unless each parent consents to the intervention. Tex. Fam. Code § 102.004(b-2).
A foster parent, relative, or designated caregiver may only be granted leave to intervene under Tex. Fam. Code § 102.004(b-2) if the foster parent, relative, or designated caregiver would have standing to file an original suit as provided by Tex. Fam. Code § 102.003(a)(11). Tex. Fam. Code § 102.004(b-3).
Special Issue: A grandparent, other relative of the child within the fourth degree of consanguinity, or other person can only utilize Tex. Fam. Code § 102.004(b) in SAPCRs that have not yet resulted in a final order. In the context of child welfare cases, the SAPCR is no longer pending once DFPS is appointed PMC of the child.
1. Case Law related to Substantial Past Contact
Courts have applied the standard definition of “substantial” from the Random House Dictionary as “of ample or considerable amount, quantity, size, etc.” and have evaluated the amount of actual contact and not the difficulties of the intervening party maintaining contact. (In re C.M.C., 192 S.W.3d 866 (Tex. App.—Texarkana 2006, no pet.)).
“Substantial past contact” has been found to involve more than seeing a child regularly during their life. Substantial past contact has been shown by parties who have “frequently cared for the children, lived nearby, and spent a great deal of time with the family.” (Blackwell v. Humble, 241 S.W.3d 707 (Tex. App.—Austin 2007, no pet.)).
Relatives who have cared for a child for as few as 7 weeks have been found to have substantial past contact. The Court's analysis focused on the caretaker's daily supervision of the child during that time and found the intervening party to have established substantial past contact in undertaking the daily functions of legal custody during that time. (In re A.L.W., No. 02-11-00480-CV, 2012 WL 5439008 (Tex. App.—Fort Worth Nov. 8, 2012, pet. denied)(mem. op.). See also In the Interest of R.I., 610 S.W.3d 581, 590 (Tex. App.—Tyler 2020, no pet.)).
In a case of first impression, the Dallas Court of Appeals has held that grandparents, as opposed “other persons,” are not required to establish substantial past contact under Tex. Fam. Code § 102.004(b). See In re Nelke, 537 S.W. 3d 917, 922-23 (Tex. App.—Dallas 2019, no pet h.).
Special Issue: The determination of whether substantial past contact exists is a fact-intensive inquiry. The determination is not statutorily defined and case law does not establish a clear factual framework for judges to make the determination.
2. Evidence that Appointment of Parent(s) as Managing Conservator Would Significantly Impair the Child's Physical Health and Emotional Development
A person with substantial past contact with a child will be unable to show evidence that the appointment of a parent as the managing conservator would cause significant impairment when facts show only speculation of potential harm if the parent is appointed conservator. (In re S.M.D., 329 S.W.3d 8 (Tex. App.—San Antonio 2010, pet. dismissed)).
Frequent moves “are acts that may constitute significant impairment of a child's physical health or emotional development.” In the Interest of A.D.T., 588 S.W.3d 312, 318 (Tex. App.—Amarillo 2019, no pet.).
3. “Significant Impairment” During Reunification Phase of a Child Welfare Case
Alleged father who had independently raised the child for two and a half years submitted to paternity testing and was dismissed as a party to the case after genetic testing ruled him out as the father. He intervened alleging substantial past contact. He was denied leave to intervene because he failed to show that the appointment of the mother as sole managing conservator would significantly impair the child's physical health and emotional development. Testimony offered by the Department at multiple hearings had shown that she had complied with all court orders and service plan requirements, that the child had already been placed with her and that the Department was recommending dismissal of the case. The Court of Appeals found no abuse of discretion in the trial court's refusal to grant leave to intervene. (L.J. v. Texas Department of Family & Protective Services, No. 03-11-00435-CV, 2012 WL 3155760 (Tex. App.—Austin August 1, 2012, pet. denied) (mem. op.)).