Temporary Grandparent Visitation Order Set Aside by Mandamus | In Re Chambless, 257 S.W.3d 698 (Tex. 2008)

TEMPORARY GRANDPARENT VISITATION ORDER SET ASIDE BY MANDAMUS ON DUE
PROCESS GROUNDS | NATURAL PARENT WAS NOT GIVEN OPPORTUNITY TO OBJECT AT
AN EVIDENTIARY HEARING.

In Re Chambless, No. 07-0767 (Tex. 2008) (per curiam opinion) (orig. proceeding) (mandamus)
(grandparent access visitation order nixed on procedural grounds, due process rights of parents)

IN RE STACY D. CHAMBLESS; from Tarrant County;
2nd district (02-07-00291-CV, ___ SW3d ___, 08-23-07) stay order issued October 24, 2007, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants the petition for writ of mandamus and orders the trial court to set aside temporary order granting paternal
grandparents visitation to grandchild
Per Curiam Texas Supreme Court Opinion [retrieve four-page pdf version from court's website]
One-page opinion in the appellate court below: In re Chambles (Tex.App.- Dallas, Aug. 23, 2007)
Terms: Grandparent rights to access to and visitation with grandchild | Grandmother | Grandfather |
natural parent preference | presumption favoring biological parents, mother, father | Grandparent access statute |
Texas Family Code | ex parte hearing | temporary order in suit affecting the parent-child relationship |
Links: Texas grandparent SAPCR intervention visitation access and custody caselaw
Grandparent and nonparent child custody suits and intervent ion - Houston cases | SAPCR Cases |
Other Family Law Rulings from the Texas Supreme Court |
Other 2008 Mandamus Rulings by the Texas Supreme Court | per curiam opinions |
Texas Opinions Home Page
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In re Chambless 257 S.W.3d 689 (Tex. 2008) (per curiam) (orig. proc.)
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PER CURIAM

In this original proceeding, we must decide whether the trial court abused its discretion in awarding
temporary grandparental visitation without affording the custodial parent an opportunity to be heard. See
Tex. Fam. Code § 153.433. Because we conclude the trial court abused its discretion, we conditionally
grant mandamus relief and direct the trial court to vacate its August 14, 2007 temporary order granting
grandparental visitation.

The relator, Stacy D. Chambless, is the mother of seven-year-old J.A.C. In a suit affecting the parent-
child relationship, the trial court appointed Stacy managing conservator and J.A.C.’s father, Bobby D.
Cook, Jr., possessory conservator of J.A.C. with the paternal grandparents supervising Cook’s visitation.
After Cook died in a motorcycle accident, the paternal grandparents filed a petition seeking visitation
under section 153.432 of the Texas Family Code. At the hearing on this petition, the grandparents
claimed J.A.C. would be significantly harmed if he did not know his father’s side of the family, especially
J.A.C.’s two half-brothers. In support of their claim, the grandparents offered into evidence a social study
report by Rhonda Hopkins, a court-appointed social worker, who opined that depriving the paternal
grandparents access would be “very detrimental” to J.A.C.’s emotional well-being. The social worker
was not able to attend the hearing and thus Stacy did not have an opportunity to cross-examine her about
the report.

Stacy moved for a directed verdict after the presentation of the grandparents’ case-in-chief, arguing that
the grandparents had failed to show that J.A.C. would suffer significant physical or emotional impairment
absent visitation with his grandparents. The trial court, however, denied the motion and recessed the
hearing until the social worker was available to testify. The trial court then signed an “interim” visitation
order, allowing the grandparents access to J.A.C. for three days each month over Stacy’s objection and
without giving her an opportunity to present evidence on the subject.

Stacy thereafter sought mandamus relief and an emergency stay in the court of appeals, but the court
denied relief. She then sought the same relief in this Court.

We stayed the trial court’s interim order to consider the merits of her petition for writ of mandamus.

“Possession of or access to a child by a grandparent is governed by the standards established by
Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-
ordered visitation must “overcome[] the presumption that a parent acts in the best interest of the . . . child
by proving by a preponderance of the evidence that denial of possession of or access . . . would
significantly impair the child’s physical health or emotional well-being.” Id. § 153.433(2). A trial court
abuses its discretion when it grants access to a grandparent who has not met this standard. In re
Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).

Stacy complains that the trial court abused its discretion in awarding the paternal grandparents
temporary visitation without affording her an opportunity to be heard. She further argues this temporary
visitation order violates her fundamental right as a parent. Parents enjoy a fundamental right to make
decisions concerning “the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65
(2000) (plurality opinion). This “natural right which exists between parents and their children is one of
constitutional dimensions,” Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004) (quoting Wiley
v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)), and is “far more precious than any property right,” In the
Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59
(1982)). “So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no
reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper, 189 S.W.3d
777, 778 (Tex. 2006) (per curiam) (quoting Troxel, 530 U.S. at 68). The State “[cannot] infringe on the
fundamental right of parents to make child rearing decisions simply because a state judge believes a
better decision could be made.” Derzapf, 219 S.W.3d at 333 (quoting Troxel, 530 U.S. at 68).

Here, the paternal grandparents concede Stacy is a fit parent and acknowledge Stacy would likely talk to
J.A.C. about his father. Stacy also argues that if given the opportunity, she would present evidence that
denying the grandparents visitation is in her child’s best interest. A parent must be given a meaningful
opportunity to be heard before a trial court awards temporary grandparental visitation. Cf. In the Interest
of J.W.T., 872 S.W.2d 189, 198 (Tex. 1994) (Hecht, J., concurring) (noting “that in a free society the
State cannot deny a [parent] all right to his child without due process”); see also Stanley v. Illinois, 405 U.
S. 645, 651 (1972) (finding that a parent’s right to “the companionship, care, custody, and management
of his or her children” is an important constitutional interest that “undeniably warrants deference and,
absent a powerful countervailing interest, protection”). Thus, the trial court abused its discretion in
awarding the paternal grandparents temporary visitation with J.A.C. without affording Stacy a meaningful
opportunity to be heard.

Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to vacate
its August 14, 2007 temporary order granting grandparental visitation. Tex. R. App. P. 52.8(c). We are
confident the trial court will promptly comply; our writ will issue only if it does not.

Opinion delivered: June 27, 2008