A fit parent generally has the right to determine who has access to the child.  In some cases, however, people other than the parents may seek visitation or even custody of the child.  When someone other than a parent seeks rights in a Texas case, they must meet certain conditions.  In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence.  The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship.  The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

The mother argued the grandmother did not have standing to intervene.  The mother testified she and the child lived with the grandmother until August 2019, when they moved into their own place. The grandmother started watching the child while the mother worked in September 2019 when daycare became too expensive. The mother testified she never intended to leave the child with grandmother permanently.

In the spring of 2021, the mother decided to have her own family watch the child.  The mother said the grandmother often cussed at her in text messages. She had not cut off contact between the child and the grandmother and they had talked on the phone and visited in person.

The grandmother made several allegations regarding the mother’s care of the child, specifying seven incidents, including the child needing stitches and getting burnt.  The mother testified regarding all the incidents.

The grandmother was concerned the mother could not take care of the child without her help.  She said she was concerned about the child’s emotional development if she did not have regular access because she provided stability and patience.  She testified the child fought with the mother and had thrown things at her. She testified the child had recently asked her not to send her back to her mother’s.

Trial Court Grants Grandmother Access; Mother Seeks Mandamus Relief

After the hearing, the trial court issued temporary orders naming the mother sole managing conservator and the father and grandmother temporary possessory conservators.  The court granted visitation to the grandmother.  The court found that the mother was a fit parent and characterized the incidents cited by the grandmother as “accidents.” The trial court said it granted visitation because the child and grandmother were bonded, and cutting contact to a grandparent whom the child considers a parental or attachment figure could have traumatic effects or cause “significant psychological harm.”

In its written temporary orders, the trial court found it had jurisdiction, that the mother was a fit parent entitled to the fit-parent presumption, and that the grandmother had standing pursuant to Tex. Fam. Code § 102.003(a)(9).

The mother petitioned for a writ of mandamus, arguing the trial court abused its discretion in denying the mother’s motions to dismiss the grandmother’s conservatorship and possession and access claims and in granting temporary access to the grandmother.

The appeals court considered the grandmother’s potential standing under several statutes.  A nonparent has standing to file a suit affecting the parent child relationship if they have had care, control, and possession of the child for at least six months ending within 90 days before the petition was filed.  The court must consider the child’s principal residence during the relevant time.  Tex. Fam. Code § 102.003(b).

Pursuant to case law, a nonparent can only establish standing under this statute if they shared a principal residence with the child for the required timeframe.

In this case, the child had moved out of the grandmother’s home well before 90 days prior to the filing of the petition.  The grandmother argued she had substantial and consistent possession of the child because she was the child’s primary caregiver while the mother was at work. The Texas Supreme Court has held that babysitters, daycare providers, and family members who help with childcare without sharing a principal residence with the child do not have standing under Tex. Fam. Code § 102.003(a)(9). The grandmother did not have standing under that section and the trial court abused its discretion in finding she did.

A grandparent has standing to seek managing conservatorship under Tex. Fam. Code § 102.004 if the child’s present circumstances would significantly impair his or her health or development.

The grandmother alleged the child was in “imminent and material danger” with the mother, pointing to the seven incidents in her affidavit and the fact the mother had left the child with friends.

The grandmother admitted she had not been present during any of the incidents and could not dispute the mother’s explanations. The trial court had characterized the incidents as “accidents” and found the mother to be fit. The appeals court found the trial court abused its discretion when it did not dismiss the mother’s conservatorship claim.

The mother also argued that the grandmother did not have standing under Tex. Fam. Code § 153.432.  Pursuant to that statute, a grandparent has standing to seek possession and access if they attach an affidavit with an allegation that denial of possession and access would significantly impair the child’s physical health or emotional well-being, along with the supporting facts.

The grandmother’s affidavit stated she had financially and psychologically cared for the child and the two had a close bond. She claimed the mother put the child in unsafe conditions. She claimed the mother was unable to care for the child without her help and had difficulty controlling the child.  The grandmother was concerned the granddaughter would be harmed by losing her as a stable influence in her life.

The mother had agreed the grandmother had cared for the child, but also said she believed the grandmother continuing to be the child’s daily caregiver was not in the child’s best interest because of that relationship.  She explained all of the incidents the grandmother described in her affidavit. Both the mother and the maternal grandmother testified the child’s behavior had not changed recently.  Additionally, the mother still allowed some contact between the child and grandmother.

Appeals Court Finds Grandmother Lacks Standing

The appeals court found the grandmother had not provided any facts showing the child was significantly impaired by the grandmother having less access and possession.  She had not rebutted the testimony that the child had not changed recently.  The mother had explained the incidents the grandmother raised such that the trial court considered them to be accidents.

The appeals court found the grandmother had not shown she had standing under Tex. Fam. Code § 154.432. The trial court therefore abused its discretion in not dismissing her claim for possession and access and in naming her temporary possessory conservator and granting her visitation.

The appeals court found the grandmother did not have standing to pursue conservatorship or possession and access.  The trial court therefore did not have subject matter jurisdiction over those claims. The appeals court granted the mother’s petition and ordered the trial court to vacate the temporary orders naming the grandmother possessory conservator and granting her possession of and access to the child.

Grandparent Access is Strict and Nuanced; Call McClure Law Group Today for Advice

Grandparents’ rights usually arise when there is already a contentious relationship with the parents. Whether you are seeking or opposing such rights, a skilled Texas custody attorney can advise you on your options and help you seek the best outcome for your child or grandchild.  Call 214.692.8200 to set up a consultation with McClure Law Group.