Contact Jerry Melton for a free initial consultation.

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

GRANDPARENTS

B. Possession and Access
Statutes
A biological or adoptive grandparent may request possession of or access to a grandchild by filing an original suit or a suit for modification as provided by Chapter 156. Tex.Fam.Code §153.432(a). A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, whether or not the appointment of managing conservator is an issue in the suit. Tex.Fam.Code 153.432(b). This subsection merely clarifies the circumstances in which a grandparent may request the possession or access; it does not redefine who may seek access. In re Derzapf, 219 S.W.3d 327, 331 (Tex. 2007). Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153. TCF §102.004(c).

The court shall order reasonable possession of or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;

(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and

(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child "Grandparents And Other Third Parties Chapter 22".

4(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B) has been found by a court to be incompetent;
(C) is dead; or
(D) does not have actual or court ordered possession of or access to the child. TEX.FAM.CODE §153.433.2.

Cases
a. In re Derzapf, 219 S.W.3d 327 (Tex. 2007) After Mother's death, maternal grandmother and her husband, step-grandfather, (the Johnsons) filed an original SAPCR requesting sole managing conservatorship. The trial court dismissed the case stating the grandmother and step-grandfather "lack[ed] standing to be appointed as Sole Managing Conservators or Joint Managing Conservators of the children under §102.004(a) (1) of the Texas Family Code" because there was no evidence that Father's care of the children created "serious question[s] concerning [their] physical health or welfare" as the statute requires. The Johnsons then filed a petition for grandparent access. The trial court entered temporary orders granting the Johnsons visitation. Father filed for mandamus relief, but the petition was denied by the court of appeals. The Texas Supreme court held that the grandparent access statue does not give standing to a step grandparent. In re Derzapf, 219 S.W.3d at 332. The Court did not reach the issue of whether §102.004 gave a step-grandparent standing. However, they did state that "Concluding that he had standing under Tex.Fam.Code Ann. § 102.003(a)(9) when access was granted based on the other statute would have permitted an end-run around the requirements of Tex.Fam.Code Ann. § 153.432(a), a result the legislature could not have intended. Id. The Texas Supreme Court emphasized the presumption that a fit parent acts in their child's best interest. The presumption can only be overcome by proving by a preponderance of the evidence that "denial . . . of access to the child would significantly impair the child's physical health or emotional wellbeing." In re Derzapf, 219 S.W.3d at 333. Further, the grandparent must overcome the statutory presumption that denying the children access to her in particular--not her and step-grandfather jointly or the Johnson family as a whole--would significantly impair the children's physical health or emotional well-being. Id. at 333.


b. In the Interest of C.A.M.M., 2007 Tex. App. LEXIS 8585 (Tex. App. - Houston [14th Dist.] 2007) The Mother in this case was named sole managing conservator in an Order to Modify the Parent-Child Relationship originally arising from an Order Establishing Paternity. After Mother dies, Grandparents file a "First Amended Petition to Modify the Parent-Child Relationship and in the Alternative Petition in Suit Affecting the Parent-Child Relationship and in the Alternative Suit for Grandparent Access." After a non-jury final trial, the parties are named joint managing conservators with Grandparents awarded the right to determine the primary residence of the child. Father appealed. The appellate court held that the parental presumption does not apply in Suits for Modification. "In an original proceeding…the non-parent is required to "affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally." In a modification proceeding, a non-parent is not required to prove that a parental appointment would significantly impair the child (In Re V.L.K, 24 S.W.3d 338 Tex. 2000). Instead, a non-parent who recently has lived with the child for six months can be appointed as a sole or joint managing conservator and obtain the right to designate the child's primary residence by demonstrating that the appointment would be in the child's best interest, and… Thus, in a suit for modification, the trial court does not presume that appointment of the surviving parent as sole managing conservator is in the child's best interest. See V.L.K., 24 S.W.3d at 341.

c. In the Interest of M.A.S., 2007 Tex. App. LEXIS 7436 (Tex. App. Corpus Christi July 5, 2007) In this case, the court entered a custody order naming the unmarried parents joint managing conservators and Grandmother possessory conservator. Mother filed a Petition to Modify the Parent-Child Relationship to remove Grandmother as Possessory conservator. The trial court granted the motion. Grandmother appealed. Citing TEX.FAM.CODE §156.101 and In Re V.L.K, 24 S.W.3d 338 Tex. 2000, the court held that the trial court abused its discretion when it applied the parental presumption to the modification proceeding.

d. Interest of K.A.J., 2007 Tex. App. LEXIS 4629 (Tex. App. Waco June 13 2007) The court denied Grandmother's appeal. She was not entitled to grandparent access under Texas Family Code §153.434. Grandparents And Other Third Parties Chapter 22 5

e. In the Interest of J.R.D., 2007 Tex. App. LEXIS 9840 (Tex. App. 2007) The Mother in this case testified she felt the child needed to know his grandparents, and she felt it was important for [grandmother] to have a relationship with the child because it was "all [she] had left" of her son, the child's father, who had recently died. Although mother agreed in her testimony that it was important to her child's growth and emotional health to have a relationship with his grandparents, there is no evidence in the record that denial of access would significantly impair J.R.D.'s physical health or emotional wellbeing.

f. In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) In this case, the court found a mother's due process rights were violated when grandparents were granted visitation because there was no evidence that the mother was unfit, no evidence that the child's health or emotional well being would suffer, and no evidence the mother intended to deny visitation entirely.

C. Possessory Conservator
Neither a grandparent nor another person can file an original suit requesting possessory conservatorship. TCF §102.004(b).