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Grandparents and Other Third Parties
(Suit Affecting the Parent Child Relationship)

GRANDPARENTS

A. Managing Conservator
1. Statute
Grandparents or other relatives of the child related within the third degree by consanguinity may file an original suit requesting managing conservatorship if there is satisfactory proof that the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or, both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. TCF §102.004(a). Tex.Fam.Code §102.004(b). Grandparents or other relatives may not file an original suit requesting possessory conservatorship. However, the court may grant them leave to intervene in a pending suit filed by a person authorized to do so, if the grandparent or other relative has had significant past contact with the child and there is satisfactory proof that 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. If both of the parents of a child are deceased, the court may consider appointment of a parent, sister, or brother of a deceased parent as managing conservator of the child, but that consideration does not alter or diminish the discretionary power of the court. Tex.Fam.Code 153.431.

2. Limitations on Standing
If the parent-child relationship between a child and every living parent has been terminated, an original suit may not be filed by: (1) a former parent whose parent-child relationship with the child has been terminated by a court order; (2) the father of the child; or (3) a family member or relative by blood, adoption, or marriage of either a former parent or the father of the child. TEX.FAM.CODE §102.006. These limitations on filing suit do not apply to a person who has a continuing right to possession of or access to a child under an existing court order or where the consent of the child's managing conservator, guardian or legal custodian brings the suit. Tex.Fam.Code §102.006(b). A recent case found that this section provides exceptions to the other standing rules, and merely bars certain parties from filing suit who would otherwise have standing to file suit. In the Interest of C.M.C. and J.T.C. S.W.3d (Tex. App. -Texarkana, 2006). Further, a biological or adoptive grandparent may not request possession of or access to a grandchild if each of the biological parents of the grandchild has died, had the person's parental rights terminated or has executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child; and the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent. Tex.Fam.Code §153.434.

3. Cases

a. In re M.A.M, 24 S.W.2d 788 (Tex.App. - Beaumont 2001, no pet.)
The qualifying phrase, 'deemed by the court to have had substantial past contact with the child,' modifies 'other person,' not 'grandparent or other person.' Section 102.004(b) recognizes two classes of persons: 1) grandparents and 2) other persons deemed by the court to have had substantial past contact with the child. As [Intervenor] is indisputably the biological maternal grandmother of [the child], no finding of substantial past contact with [the child] was required for her to satisfy the standing requirement of Section 102.004(b).

b. In the Interest of S.S.J.-J., 153 S.W.3d 132 (Tex.App. -San Antonio 2004, no pet.) Maternal grandmother and maternal step grandfather filed suit against the child's biological father, seeking to be appointed managing conservators of the child after the death of the child's mother. The trial court granted the father's motion to dismiss for lack of standing and the grandparents appealed. The court of appeals reversed and remanded the case and found the grandparents had standing under Tex.Fam.Code §102.003. Based on the affidavits filed by the grandparents, which asserted the eleven year old child had lived with them her entire life, the court found the grandparents had met the standing requirements set forth in Tex.Fam.Code §102.003(a)(9). The case also includes some discussion of the application of the parental presumption contained in Tex.Fam.Code §153.131. The father asserted that without alleging facts to overcome the parental presumption, the grandparents could not have standing. However, the court of appeals found that the grandparents did include some allegations addressing the parental presumption, but that dismissal based on those grounds was not supported by the case law submitted by the father since all of the cases he cited were determined after a hearing on the merits. Grandparents And Other Third Parties Chapter 22 3 The court points out in its opinion that a finding that a party has standing to sue does not equate with a right to win, but merely is a right to be heard in court. Therefore, those who claim standing under Chapter 102 still will most often be faced with overcoming the parental presumption in a contest for managing conservatorship with the surviving parent. In re SSJ-J, 153 S.W.3d at 137. Alternatively, if possessory conservatorship is sought, the grant of standing is clearly the first step toward maintaining contact with the child. Id

c. In the Interest of A.L.S., S.W.3d (Tex. App.- Beaumont 2006, no pet.) After the death of their son, the appellants filed a SAPCR requesting appointment as managing conservators of their grandson, A.L.S. The Court of Appeals reversed the trial court's finding that the appellants lacked standing. Prior to his death, the son had filed for divorce from A.L.S.'s mother. The parties were appointed temporary joint managing conservators with the father having the right to designate the child's primary residence. The child and his father, as well as the mother, lived with the appellants. Once the son passed away, the divorce was dismissed and the appellants brought their SAPCR, and claimed standing on the basis that they had been the child's primary caretakers all of his life and that the mother's present living environment presented a serious question concerning the child's physical health or welfare. The mother filed an answer along with a motion to strike the SAPCR, and the court dismissed the case. The court of appeals reversed, and found that the appellants had standing under Tex.Fam.Code §102.003, and further found that they also had standing under the grandparent access statute since to the child's present environment would significantly impair the child's physical health or emotional development. Tex.Fam.Code §102.004. The appellate court also found that a person seeking managing conservatorship is not required to allege facts sufficient to overcome the parental presumption in order to establish standing. Id. At 5; In re S.S.J.-J., 153 S.W.3d 132 (Tex. App. -San Antonio 2004, no pet.).

d. In the Interest of M.J.G., 2008 Tex. App. LEXIS 971 (Tex. App. - Fort Worth Feb. 7, 2008) In this case, grandparents attempted to intervene in a divorce proceeding for custody of their grandchildren. The trial court denied the petition in intervention, and the Fort Worth Court of Appeals affirmed. Grandparents alleged twelve points of error on appeal. The Appellate Court did an in depth analysis of a grandparent's standing to bring an Original Suit and found Grandparents did not meet their burden. They failed to establish they had care, custody, and control of the children for at least 6 months, and failed to establish significant impairment of the children's physical health or emotional development. The Court also did an in depth analysis of a grandparent's right to intervene in an existing suit. The court found Grandparents in this case did not show they were entitled to intervene because they did not provide satisfactory proof that appointment of either or both parents as managing conservators would significantly impair the children's physical health or emotional development. It should be noted that the grandchildren and the parents lived with the Grandparents. There was some testimony regarding possible family violence. Grandparents testified about their close relationship with their grandchildren, and that they provided medical care for the children.