Texas Divorce Attorney Blog
A party must establish standing to maintain a lawsuit. If the party does not have standing, the court does not have subject-matter jurisdiction. The parties cannot waive subject matter jurisdiction. The Texas Family Code sets forth when a non-parent has standing to pursue access or pursue to a child. A non-parent seeking access or possession of a child must establish standing pursuant to the requirements set forth in the applicable statute.
Chapter 153 of the Texas Family Code sets forth when a grandparent has standing to pursue a claim for access or possession. Pursuant to § 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denying them possession or access “would significantly impair the child’s physical health or emotional well-being” and state supporting facts. The court then determines if the facts would be sufficient to support possession or access under § 153.433 if true. The court may order possession or access under § 153.433 if at least one parent’s rights have not been terminated, the grandparent proves denying possession or access would significantly impair the child’s health or well-being by a preponderance of the evidence, and the grandparent’s child has been incarcerated for the three months before the petition, is incompetent, is deceased, or does not have possession or access to the child. In a recent case, a father and maternal grandmother each appealed a court order granting the grandmother possession and access.
Grandmother’s Petition
In December 2021, the grandmother petitioned for possession or access to her grandchildren. The father filed a counterpetition, asking for a judgment naming him sole managing conservator. In February 2022, the court rendered temporary orders naming the grandmother a “nonparent” possessory conservator with standard possession.
The trial court granted the grandmother possessory conservatorship after a trial. On the father’s motion, the trial court modified the judgment to remove the grandmother’s designation as “conservator,” but still granting her possession and access.
The Appeal
Both parties appealed. The father argued the grandmother did not have standing to seek possession or access. He also argued she did not rebut the fit parent presumption. The grandmother argued the court erred in modifying the judgment.
The grandmother argued she had standing as the biological grandparent of the children.
The grandmother’s affidavit stated the parents fought and the mother would come to the grandmother’s home crying with the older child. It also stated the grandmother babysat while the mother was at work. The grandmother’s affidavit stated the children were emotionally attached to and had a strong bond with her. It further stated that, since the mother’s death, the father had been “alienating” the children and telling them the grandmother did not love them anymore. It stated the grandmother had only seen the children twice since the mother had passed away three months earlier.
The grandmother testified she had been the children’s primary caregiver because the mother worked long hours and the father slept until early afternoon. She said the children spent all holidays with her before their mother died and that the father did not come, though he was welcome.
The grandmother testified the father thought they had called CPS and stopped bringing the children over. She expressed concerns denial of court-ordered visitation and geographical restrictions would be “mentally, emotionally” detrimental to both her and the children.
The appeals court acknowledged there was a “tragic breakdown” in the relationship, but determined the grandmother had not alleged a significant impairment as required by the statute.
Significant impairment to a child’s physical health or emotional well-being can be a difficult standard to meet. Courts have held that sadness at being separated from the grandparent does not rise to the level of significant harm. In this case, the grandmother alleged the children had experienced “emotional harm” and “emotional trauma,” but the court determined it was not sufficient to show significant impairment.
The appeals court also concluded the grandmother had not overcome the fit parent presumption. Fit parents generally have a fundamental right to make decisions regarding child-rearing. Texas law presumes that a fit parent acts in their child’s best interest. Therefore, a fit parent generally has the right to determine if a grandparent has access or possession of the child, and a grandparent seeking access or possession against a parent’s wishes under Tex. Fam. Code § 153.433 must overcome the presumption by showing by a preponderance of the evidence that denying their request would significantly impair the emotional well-being or physical health of the child.
The appeals court held that the grandmother failed to meet the burden of alleging facts that affirmatively showed her standing to seek possession and access. The trial court therefore lacked subject-matter jurisdiction. The appeals court vacated the judgment and dismissed the case.
Call a Texas Child Custody Lawyer
Sadly, when a parent passes away, the relationship between their family and the living parent sometimes deteriorates. Texas family law allows grandparents to seek possession and access of the grandchildren in these circumstances if they meet the stator criteria, but that can be very difficult. If you are facing a custody or visitation dispute, the knowledgeable Dallas custody attorneys at McClure Law Group can advise you of your rights. Call us at 214.692.8200 to set up an appointment to discuss your case.