CASES FROM TEXAS COURTS OF APPEAL ADDRESSING STANDING AND RIGHTS OF GRANDPARENTS AND NON-PARENTS WITH REGARD TO CHILD CUSTODY, ACCESS, AND VISITATION Also see ---> Blog on Grandparents' Legal Issues in Texas TEXAS SUPREME COURT CASES WITH OPINIONS In Re Chambless, No. 07-0767, 51 Tex. Sup. Ct. J. 1111 (Tex. 2008) (per curiam) (orig. proc.) (grandparent visitation improperly granted; mother's due process rights disregarded)(mandamus granted) In re Moore, No. 06-0544, 235 S.W.3d 210 (Tex. Aug. 31, 2007)(per curiam) (SAPCR, sanctions in child custody dispute between parent and non-parent vacated by mandamus) In Re Ricky Derzapf, No. 06-0669, 219 S.W.3d 327 (Tex. 2007) (orig. proceeding) (per curiam) (Texas Supreme Court grants mandamus to vindicate natural parent's superior rights) In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (orig. proc.) (parent prevails over grandparent in dispute over grandparent visitation, Supreme Court grants mandamus relief) Kiefer v. Touris (Tex. May 26, 2006)(bill of review, paternity, nonpaternity) CONTROLLING U. S. SUPREME COURT PRECEDENT
right to decide who has access to their children) CASES DECIDED BY TEXAS COURTS OF APPEALS Dallas Court of Appeals In re M.P.B. No. 05-07-00093-CV (Tex.App.- Dallas June 20, 2008)(primary JMC for grandmother affirmed) ("M.P.B.'s father appeals the trial court's order appointing M.P.B.'s grandmother as the non- parent primary joint managing conservator and Father as a parent joint managing conservator. In three issues, Father contends (1) Grandmother did not have standing to bring suit, (2) the trial court denied him the right to a jury trial, and (3) Grandmother failed to overcome the statutory presumption that it is in a child's best interest to have custody awarded to a parent. We overrule Father's issues and affirm the trial court's order.") In re B.N.S., No. 05-07-00016-CV, 247 S.W.3d 807 (Tex.App.- Dallas, March 19, 2008)(access denial on appeal) ("This is an appeal from an order granting Kathy Hartzog and Jerry Grills possession of their three grandchildren pursuant to the grandparent access statute. See Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007). The children's father, James Radford Sayman, challenges the trial court's order, asserting (1) Hartzog and Grills failed to satisfy the statutory requirements for such an order, and (2) the order is unconstitutional because Sayman is a fit parent and there is no evidence he would completely deny access to the children or that the children would suffer emotional harm if the trial court deferred to his decision. Because Hartzog and Grills do not meet the statutory requirements of section 153.433 of the family code, we reverse the trial court's judgment and render judgment that their petition is denied.") In re J.R.D., No. 05-06-01554-CV (Tex.App.- Dallas, December 19, 2007)(trial court order granting access reversed by court of appeals; grandparent did not meet burden set by statute to rebut that parental presumption ("This is an appeal from an order granting Ted and Anita Dettmer access and visitation with their paternal grandchild, J.R.D. J.R.D.'s mother challenges the trial court's order contending, among other things, that the trial court erred in not granting her motion for judgment because the Dettmers presented no evidence to meet their statutory burden of proof under section 153.433 of the Texas Family Code. We agree the Dettmers failed to meet their statutory burden. Accordingly, we reverse the trial court's order and render judgment denying the Dettmers' petition for access. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.") In re D.R.D., No. 05-06-00666-CV, (Tex.App. Dallas August 8, 2007) (grandparent access denied, no evidence to support applicable standard, i.e. that denial of access would significantly impair the child's physical health or emotional well-being.) ("To prevail on her petition for access, Rushing had to overcome the presumption that Randolph was acting in the best interests of D.R.D. by proving by a preponderance of the evidence that denying Rushing access to D.R.D. would significantly impair the child's physical or emotional health. Id. The record before us contains no evidence from which the trial court could conclude Rushing met her statutory burden. ") In re J.P.C., No. 02-07-00184-CV (Tex.App.- Fort Worth, July 17, 2008)(death of parent, grandparent intervention unsuccessful, access order reversed by court of appeals) ("We have closely reviewed the record in this case for evidence that denial of access would significantly impair J.P.C.'s physical health or emotional well-being, and we are unpersuaded by the grandparents' arguments. Our review of the record shows that the grandparents have not presented any probative evidence to show that J.P.C.'s physical or emotional health would be significantly impaired by the denial of access. See Butnaru, 84 S.W.3d at 211. Instead, the grandparents have offered only bare, unsupported allegations that the denial of access would significantly impair J.P.C. * * * After reviewing the record, we determine that the evidence produced by the grandparents, largely consisting of their own feelings and speculations, did not rise to the level of proving by a preponderance of the evidence that denial of access would significantly impair the physical health or emotional well-being of J.P.C. The mere opinion of the grandparents themselves and an interested, nonexpert witness that the grandparents should be granted access does not overcome the statutory presumption, nor does it support the court's interference with Dayna's parental rights by awarding the grandparents court-ordered access to J.P.C. Thus, the grandparents have failed to show that the denial of access would significantly impair J.P.C.'s physical or emotional well-being. Because a trial court has no discretion in applying the law to the facts, the trial court's determination that the statutory presumption was overcome was an abuse of discretion.") In re W.M, No. 02-07-00028-CV (Tex.App.- Fort Worth, June 28, 2007)(termination of parental rights, voluntariness of affidavit of relinquishment, best interest factors) In re Kevin J. Smith, No. 14-08-00164-CV , ___ S.W.3d ___ (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost) (SAPCR, grandparent access mandamus denied, standing requirement for access satisfied) Taylor v. Taylor, No. 01-07-00571-CV, 254 S.W.3d 527 (Tex.App.- Houston [1st Dist.] March 20, 2008) (grandparent vs. parent SAPCR jury trial, judgment on jury verdict reversed, sanctions) In re Collins, No. 14-07-00624-CV, 242 S.W.3d 837 (Tex.App.- Houston [14th Dist.] Dec 17, 2007) (amicus attorney for deceased child, wrongful death suit, mandamus relief against temporary order) In Interest of C.A.M.M., No. 14-06-00279-CV, 243 S.W.3d 211 (Tex.App.- Houston [14th Dist] October 30, 2007) (Guzman) (SAPCR, nonparent custody, grandparent must overcome presumption that parents act in best interest of child) Concurring Opinion by Justice Frost Heiskell v. Kendrick (Tex.App.- Houston [14th Dist.] October 26, 2007)(Hedges)(SAPCR, grandparents) Bolton v. Schultz, 14-05-00410-CV, 14-06-00102-CV (Tex.App.- Houston [14th Dist.] July 17, 2007)(Anderson)(SAPCR, intervention, adoption dispute) Whitworth v. Whitworth, No. 01-04-01026-CV, 222 S.W.3d 616 (Tex.App.- Houston [1st Dist.] March 16, 2007, no pet.)(Hanks) (subst. opinion on rehearing)(family law, SAPCR, SMC, grandparents, standing to intervene) "Based on our review of the evidence, we conclude that the trial court did not abuse its discretion in appointing Carol as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing Tammy as a managing conservator would result in serious physical or emotional harm to K.C. See Brook, 881 S.W.2d at 298. We also hold that the trial court did not abuse its discretion in awarding Tammy less than standard possession." Monroe v. Alternatives in Motion, No. 01-05-01188-CV, 234 S.W.3d 56 (Tex.App.- Houston [1st Dist.] Feb. 22, 2007)(termination of parental rights affirmed, jury demand was not timely made) In re Schoelpple, No. 14-06-01038-CV (Tex.App.- Houston [14th Dist.] February 13, 2007)(per curiam denial) (family law, SAPCR, grandparent access, effect of nonsuit on intervention) In re S.L.M., No. 04-07-00566-CV (Tex.App.- San Antonio June 18, 2008) (nonparent standing, sibling visitation) ("[S]ection 102.004(b) [of the Texas Family Code] explicitly sets forth who may intervene in a suit seeking to establish managing conservatorship. Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2007). Gary and Cindy B. did not meet that criteria. In a similar context involving a step- grandparent, the Texas Supreme Court rejected a standing argument based on an asserted justiciable interest, holding, "We cannot conclude that [the step-grandparent] has a justiciable interest in the controversy sufficient to override the statutory text" that explicitly sets forth who may sue for access. In re Derzapf, 219 S.W.3d 327, 332-33 (Tex. 2007). Similarly, in this case, we cannot conclude that Gary and Cindy B. have a justiciable interest in the controversy sufficient to override the statutory text requiring them to have substantial past contact in order to intervene as an "other person." See id.") ... ("Although section 153.551 establishes a statutory right to seek sibling access, section 102.0045 requires the sibling requesting access to be at least 18 years of age. (2) Tex. Fam. Code Ann. § 153.551, 102.0045 (Vernon Supp. 2007). Since S.B. is not at least eighteen years of age, she does not have standing to seek sibling access. Id.; but see generally Paige Ingram Castañeda, Comment, O Brother (or Sister), Where Art Thou: Sibling Standing in Texas, 55 Baylor L. Rev. (2003) (arguing legislature should extend standing to both adult and minor siblings and allow them to petition court for sibling access or visitation).") In re J.O. No. 04-07-00752-CV (Tex.App.- San Antonio, May 14, 2008, no pet.)(grandmother as temporary possessory conservator, parental presumption) in re Ray Ellison Grandchildren Trust, No. 04-06-00704-CV (Tex.App.- San Antonio, April 2, 2008, pet. filed) (probate law, construction of the word descendants, adoption of adult vs. child, legislative history of adoption statue) In re M.A.S., No. 04-06-00626-CV, (Tex.App.- San Antonio September 12, 2007) ("Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an original custody proceeding but not to a modification proceeding. We agree.") In re deFilippi, No. 04-07-00506-CV, 235 S.W.3d 319 (Tex.App.- San Antonio, August 30, 2007) (children ordered returned to father after mother's death, superior custodial rights compared to grandparents) In this original proceeding, relator Christopher R. deFilippi seeks a writ of mandamus to obtain possession of his three children after the unexpected death of their mother. The Honorable Oscar J. Hale, Jr., Judge of the 406th Judicial District Court of Webb County, denied relator's habeas corpus petition. We conclude that the trial judge had a ministerial duty to return the children to their father and therefore conditionally grant mandamus relief. In re H.G. No. 04-07-00656-CV, ___ SW3d ___ (Tex.App.- San Antonio, June 11 ,2008) (grandparents of adopted children lack standing, attempted intervention in adoptive parents' divorce, quasi-estoppel) In re Sanchez, No. 04-06-00809-CV, 228 S.W.3d 214 (Tex.App.- San Antonio, April 4, 2007) ("Jennifer Sanchez seeks a writ of mandamus to compel the trial court to vacate temporary orders in a child custody modification suit. Because the trial court failed to apply the law properly and Sanchez has no remedy by appeal, we conditionally grant the relief requested.") Tristan v. Castillo, No. 04-05-00658-CV (Tex.App.- San Antonio, March 14, 2007) Corpus Christi Court of Appeals Banta v. Texas DFPS, No. 13-06-00548-CV (Tex.App.- Corpus Christi, July 26, 2007) (grandparent access denied) Casas v. Adriano, No. 13-06-00373-CV (Tex.App.- Corpus Christi, July 5, 2007)(grandparent access granted and order affirmed on appeal) Austin Court of Appeals Baggs v. Becker, No. 03-07-00731-CV (Tex.App.- Austin, Feb. 6, 2009, pet. denied June 2009) (grandparent sought custody over divorce, Texas court declines to exercise jurisdiction in favor of Florida on forum non conveniens grounds) This appeal arises from a child custody suit filed by the child's grandmother and her husband. The trial court found that the State of Texas was an inconvenient forum and declined jurisdiction in favor of Florida. See Tex. Fam. Code Ann. § 152.207 (West 2002). The grandparents appeal and contend that the trial court's decision to decline jurisdiction was an abuse of discretion because it was not supported by the evidence. The Austin Court of Appeals hold that the trial court did not abuse its discretion and affirms the decision of the trial court. Kenda Kushner v. Stan Kushner, No. 03-06-00634-CV (Tex.App.- Austin, Mar. 7, 2008) (Opinion by Justice Pemberton )(Mother's appeal of order awarding custody of child to paternal grandfather intervening under the grandparent provisions of the Texas Family Code fails. Trial court did not err in refusing to strike petition in intervention.) ("Kenda Kushner appeals the district court's judgment appointing her ex-husband's father, Stanley Kushner, as sole managing conservator of her and her ex-husband's son, M.J.K. In a single issue, Kenda (1) argues that the district court abused its discretion when it failed to strike Stanley's Petition in Intervention of Grandparent in Suit Affecting the Child-Parent Relationship because Stanley failed to allege sufficient facts to satisfy the requirements to intervene under section 102.004(b) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.004(b) (West Supp. 2007). We overrule Kenda's issue and affirm the judgment of the district court. * * * We affirm the district court's judgment appointing Stanley Kushner as sole managing conservator, and Phillip and Kenda Kushner as possessory conservators, of the child M.J.K.") Spencer v. Vaughn, No. 03-05-00077-CV (Tex.App.- Austin, March 6, 2008)(order granting grandparent access affirmed) ("Appellants [...] appeal from the trial court's orders, entered after a jury trial, granting appellees Noel Douglas Vaughn and Catherine Gay Vaughn, Kippling Spencer's parents, access to their grandchildren M.N.Y. and S.N.S. They argue that the grandparent visitation statute then in effect is unconstitutional on its face and as applied to them. They further argue that it was an abuse of discretion to modify M.N.Y.'s conservatorship and to award $100,000 in attorney's fees. We affirm the trial court's orders.") Texarkana Court of Appeals In re M.A.H., No. 06-06-00081-CV, 224 SW3d 838 (Tex.App.- Texarkana, May 16, 2007) (appeal from order granting custody to grandmother) In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit motion for visitation, motion for genetic testing, frivolous suit finding, sanctions imposed) Waco Court of Appeals In re K. A.J. , No. 10-07-00110-CV (Tex.App.- Waco, June 13, 2007) (grandparent attempted to appeal termination of parents' termination of parental rights, standing issue, notice of appeal untimely) |
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