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In re Brice

Court of Appeals of Texas, Fourth District, San Antonio

August 7, 2019

IN RE Jamie BRICE

          Original Mandamus Proceeding [1]

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Liza A. Rodriguez, Justice

          OPINION

          Patricia O. Alvarez, Justice

         In this original proceeding, Relator J.B. (Mom) seeks a petition for writ of mandamus to direct Respondent, the Honorable Ron Carr, to grant her plea to the jurisdiction and dismiss a SAPCR filed by Real Party in Interest P.S. (Step-Mom).

         Because Step-Mom failed to show that she has standing under section 102.003 of the Family Code, we will conditionally grant the petition for writ of mandamus.

         Background

         When Mom was married to R.S. (Dad), she gave birth to two children. After Mom and Dad divorced, Dad married P.S., who became the children's step-mother. Following a motor vehicle accident, Dad died on January 31, 2019.

         On March 15, 2019, Step-Mom filed an original petition in a suit affecting the parent-child relationship (SAPCR) seeking possession of, and access to, the two children. In her original petition, Step-Mom alleged she and Dad married on December 15, 2014, and, since that date, she "actively and consistently participated in the children's lives, attending various school and extracurricular activities, spending a significant amount of time with the children both with and without their father's presence."

         Mom filed a plea to the jurisdiction arguing Step-Mom did not have standing, and the trial court held a hearing on the plea.

         At the hearing, [2] Step-Mom testified the children had their own bedroom and bathroom in her house, and their own clothes, beds, toys, and bicycles. On the weekends that Dad had visitation, either Step-Mom or Dad would pick the children up from school on Friday and bring them to her house where she, Dad, and the children would have dinner. The children spent their visitation weekends (the first, third, and fifth weekends)[3] with Step-Mom and Dad beginning on December 15, 2014. Step-Mom and Dad briefly separated in January and February 2018 during which time Dad lived at his mother's house and the children visited with Dad there. Visitation resumed with Step-Mom and Dad from April 2018 to January 31, 2019, the date of Dad's death.

         Mom testified that on some of Dad's weekends, Dad would pick up the children from school and take them to his mother's house and visit with them there. During the summer, Dad would sometimes pick up the children a few days earlier than the Friday of his visitation weekend.

         The trial court denied Mom's plea to the jurisdiction and signed temporary orders granting Step-Mom possession of, and access to, the children.

         On May 21, 2019, Mom filed a petition for writ of mandamus and an emergency motion to stay the temporary orders. After we stayed the temporary orders, Step-Mom filed a response, Mom filed a reply, and Step-Mom filed a sur-response.

         Having considered the petition, response, reply, and sur-response, we conclude Mom is entitled to the requested ...


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