The body of case law regarding grandparent access issues continues to develop and evolve. The cases summarized below include the following concepts:

• Evidence that grandparent relationships are good is not enough to warrant access
• When a grandparent’s child has court ordered possession, even though they are not exercising it, the grandparent cannot be awarded rights of access

In the Interest of J.R.D., 2007 Tex. App. LEXIS 9840
(Tex. App. – Dallas, December 19, 2007) (Memorandum Opinion)
(Cause No. 05-06-1554-CV):
GP filed a suit for GP access. Trial was to the bench. At the conclusion of the GP’s case, M moved for a directed verdict arguing that the GP had failed to meet their statutory burden showing that the denial of access would significantly impair the child’s physical health and emotional development. The motion was denied and the TCt eventually issued an order granting GP access. The COA analyzed the evidence at trial which showed that GP had visitation under temporary orders but that M had not complied and further that M refused to allow the visits to be unsupervised. GP testified that it was important for the child to maintain a relationship with the GP, especially in light of the fact that the F had recently died. The M agreed that grandparent relationships were important but that there remained no evidence of significant impairment if access was denied. The COA agreed that there was no evidence and that the TCt’s denial of the motion for directed verdict was error. Judgment reversed and rendered.

Spencer v. Vaughn, 2008 LEXIS 1708
(Tex. App. – Austin, March 6, 2008)
(Cause No. 03-05-77-CV):
In this grandparent access suit, mom and dad appeal from an order giving maternal grandparents rights of access to the grandchildren. The suit involves two children, both born of the same mother but different fathers. Mom and father of first child divorced and mom was appointed SMC and dad was PC. After the divorce, mom and the older child lived with maternal for a while until mom remarried. Mom and new husband had a child together. Relations between mom and grandparents went south after her remarriage and in 1998 grandparents filed a suit for access to their grandchildren. The parties were able to settle and an order was signed in August 1998 giving the grandparents limited visitation with both children throughout the year. At the time the order was signed, all parties, including the father of the oldest child, all lived in Texas. Very soon after the order was signed mom and her husband moved to Utah without telling grandparents. When they were located, mom and dad repeatedly denied visitation to the grandparents based on one excuse after another. Mom and dad then moved back to Texas in early 2000 but grandparents did not learn of this for several years. In 2003 grandparents filed a motion to modify and vacate the agreed order. They also filed a motion for contempt and a suit for interference with their possessory rights. The father of the oldest child filed a suit to modify custody. After a jury trial the jury found in favor of grandparents and granted primary custody of the oldest child to her father. The trial court entered an order giving the grandparents significantly more visitation with their grandchildren, entered injunctions, ordered counseling and ordered the mom and dad to pay $50K in fees to grandparents and $50K in fees to the father of the oldest child. Mom and dad appealed, challenging the constitutionality of the former version of the grandparent statute. The court of appeals held that the same public policy considerations which eliminate consideration of the parental presumption in modification proceedings between parents should apply in modification proceedings of grandparent access orders. The fact that the grandparents already had an order for visitation which had been agreed to meant the court could decide the issue solely on material and substantial change and best interest. Mom and dad also complained about submission of the grandparent access issue to the jury but the court of appeals found that under former TFC §105.002 the court had discretion to submit the issue. (This would no longer be the case under the current version of the statute). The court of appeals affirmed the judgment after overruling the mom and dad’s legal and factual insufficiency grounds as to the remaining issues.

In the Interest of B.N.S., T.L.S., and J.R.S., Minor Children,
247 S.W.3d 807 (Tex. App. –Dallas 2008, no pet.):
Dad appeals from an order granting possession and access of his three children to their grandparents. Mom and Dad divorced in 2004 and were named JMC of their 3 children. Mom began abusing drugs and Dad filed a motion to modify. Maternal grandparents intervened and sought access. The trial court entered temporary orders giving mom supervised access but she failed to exercise it. After trial the court appointed Dad as SMC, Mom as PC with supervised periods of possession and awarded the grandparents visitation. Dad appealed. The COA reversed and rendered judgment denying access to the grandparents finding that because the mom had court ordered possession, even though she was not exercising it, the grandparents could not meet the statutory requirements of TFC §153.433(3). The COA did not reach the Dad’s constitutional arguments.

In re J.O., 2008 Tex. App. LEXIS 3465
(Tex. App. – San Antonio, May 14, 2008)
(Cause No. 04- 07-00752-CV) (memorandum opinion):
In August 2006 maternal aunt and uncle, who had cared for their 18 month old great niece off and on since birth and more recently on a consistent basis under a safety plan with CPS, filed suit seeking custody, alternatively, possession and access. In September the court appointed them temporary managing conservators and the child’s mother as a possessory conservator. After a trial on the merits the court appointed mother as managing conservator finding that she had cared for another child; had maintained appropriate housing and employment; maintained visits with the child; fostered a relationship between the child and her half-sibling; and generally acted as an appropriate parent. Father was appointed possessory conservator. The court denied access to aunt and uncle who appealed. Aunt and uncle complained that the trial court improperly excluded or failed to consider certain evidence, erred in applying the parental presumption and abused its discretion by denying access. The COA noted that the final judgment was signed in August and the aunt and uncle submitted sworn statements and exhibits in October which failed to comply with the rules regarding a formal bill of exception. TRAP 33.2. Further because the attempted “offer of proof” was not made during the evidentiary portion of the trial it did not properly preserve error. Regarding the presumption, aunt and uncle contend that this was rebutted by mother’s voluntary relinquishment of the child for a period of more than one year. The COA noted that TFC §153.373 is a two prong test requiring not only relinquishment for the required period but also a showing that it would be in the child’s best interest to appoint the non-parent as conservator. Based on the evidence of the mother’s continued efforts and improvements the COA determined the presumption was not rebutted. Finally, aunt and uncle complain that they were denied access. The COA held that while the Legislature intended for grandparents to be able to seek access in certain circumstances, no similar provision extended to aunts and uncles.

Excerpt from “Case Law Update-Children’s Issues: A Year In Review” by Sallee S. Smyth, from the State Bar of Texas 34th Annual Advanced Family Law Course, August 11-14, 2008, San Antonio

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