Texas Divorce Attorney Blog
Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville. A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit. Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child. This allegation and supporting facts are required for the grandparent to show they have standing.
Grandmother’s Petition
A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild. The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit. The child was born in April of 2020. Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.
In her affidavit, the grandmother alleged the mother was an “unfit parent.” She stated one of the mother’s friends had molested the mother’s older daughter. She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child. The grandmother stated she returned the child to avoid prosecution. The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child. The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing. The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times. The grandmother also claimed she was better able to take care of the child financially.
The mother moved to dismiss the case for a lack of standing. The trial court granted the motion. The grandmother moved for reconsideration and a new trial, attaching a supplemental affidavit alleging the mother had moved the children to Oklahoma to live with the older daughter’s father and grandfather. The grandmother alleged that she had obtained information from a background check website that the older child’s father was previously convicted of child abuse and child neglect and sentenced to eight years. She also alleged she similarly learned the grandfather had been convicted of a felony drug charged. The trial court denied the grandmother’s motion on the grounds she lacked standing.
Grandmother’s Appeal
The appeals court had to determine whether the grandmother’s affidavits were legally sufficient to show that denial of access to the child would significantly impair the child’s health or well-being pursuant to Tex. Fam. Code § 153.432(c).
The grandmother acknowledged she had not seen the child since November 2020. The appeals court concluded that the grandmother did not have sufficient current personal knowledge to support her opinions regarding the child’s current environment.
The appeals court further concluded that the grandmother’s claims about the mother’s current behavior and potential impairment to the child’s well-being were “little more than speculation.” The appeals court concluded the grandmother’s allegations were not sufficient to support standing.
The grandmother was required to show the child’s health or well-being would be significantly impaired, but she failed to allege facts that would support such an inference. The appeals court noted the grandmother had expressed concerns about treatment of the child’s older sister in the past, the mother’s past issues with alcohol, and the mother living with people who may have criminal records. The appeals court concluded these concerns were not sufficient to show the child would be significantly impaired.
The appeals court concluded the grandmother had failed to establish standing for possession or access to the child. The trial court therefore did not have subject matter jurisdiction and therefore did not abuse its discretion when it dismissed the grandmother’s petition. The appeals court affirmed the trial court’s judgment.
The grandmother in this case did not seek managing conservatorship pursuant to Tex. Fam. Code 102.004. Pursuant to that statute, a grandparent or certain other close relatives may file suit seeking managing conservators. Grandparents seeking managing conservatorship under section 102.004 must show that the child’s present circumstances would significantly impair their physical health or emotional development, or otherwise that the petition was agreed to or filed by both parents, the child’s surviving parent, or the child’s managing conservator or custodian.
Contact a Skilled Texas Custody Lawer
Whether you are a grandparent seeking visitation or custody or a parent opposing grandparent visitation or custody, McClure Law Group has the knowledge and experience to assist you. Call 214.692.8200 to set up a consultation.