GRANDPA WAS A ROLLING STONE B …CHAPTER 1 JoAl Cannon Sheridan Ausley, Algert, Robertson and...

GRANDPA WAS A ROLLING STONE B

REPRESENTING RELATIVESBGRANDPARENT AND

THIRD-PARTY STANDING

JOAL CANNON SHERIDAN

Ausley, Algert, Robertson and Flores, L.L.P.

3307 Northland Drive, Suite 420

Austin, Texas 78731

(512) 454-8791 ofc

(512) 454-9091 fax

[email protected]

State Bar of Texas

35TH

ANNUAL MARRIAGE

DISSOLUTION INSTITUTE

April 26-27, 2012

Dallas

CHAPTER 1

JoAl Cannon SheridanAusley, Algert, Robertson and Flores, L.L.P.

3307 Northland Drive, Suite 420Austin, Texas 78731

(512) 454-8791(512) 454-9091 fax

[email protected]

Education: University of Texas at Austin, B.A. with honors, 1989Baylor Law School, J.D., 1992 (Top 20%)

Licensure: Texas Supreme Court (1992)Board Certified in Family Law by the Texas Board of Legal Specialization Supreme Court of the United States (Admitted November 2010)

Employment: Partner-- Ausley, Algert, Robertson and Flores, L.L.P.,The Sheridan Law Firm, January 2006-January 2008Moak and Sheridan, 1996-2006Former Briefing Attorney for Hon. Joe Draughn, 14th Court of Appeals, Houston

(1992-1993)

Areas of Practice: Family Law

Professional Activities and Honors:*Baylor Law School 2004 Young Lawyer of the Year *Recognized as a Texas Rising Star by Texas Monthly and Law & Politics Magazines (July 2004)*Recognized as a Texas Super Lawyer by Texas Monthly and Law & Politics Magazines (2004,

2005, 2006, 2007, 2008, 2009, 2010 and 2011)*Outstanding Third Year Director, SBOT Board of Directors (2001)*SBOT Presidential Citation and Award of Merit (2001 and 2004)*Director, State Bar of Texas Board of Directors (1998-2001)(youngest ever elected);

Chair, SBOT Board Legislative Policy CommitteeChair, SBOT Board Legal Services CommitteeVice-Chair, SBOT Board Grievance and Disciplinary System Oversight Comm.Member, Audit and Finance CommitteeSpeaker, New SBOT Director Orientation

*Director, Board of Disciplinary Appeals (2008-2011)(Vice-Chair, 2009-2012)*Fellow, American Academy of Matrimonial Lawyers

Member, Membership Committee*Director, Texas Academy of Family Law Specialists, Board of Directors (2011-2014)*Trustee, Texas Bar Foundation (2007-2010; Executive Committee 2010)*Officer Track/Treasurer, Texas Family Law Foundation (2010-2016)*President, Baylor Law School Alumni Board (2009-10)*Member/Director, Family Law Section Council (2001-2011)

-Committees–Legislative, State Bar, Member Services, Pro Bono*Member, District 2A Grievance Committee, State Bar of Texas (2003-2008)*Co-Course Director, TAFLS 2012 Trial Institute, Las Vegas, Nevada*CLE Planning Committee, SBOT Family Law Advanced Course (2004, 2010; New Frontiers

2006, 2007; Marriage Dissolution, 2007; UT Family Law on the Frontlines, 2008, 2009;UT Parent-Child Course, 2010)

*CLE Speaker/Author, “Ding! You are Now Free to Roam About the Country,” SBOT AdvancedFamily Law Course 2011

*CLE Speaker/Author, “Jurisdictional Issues,” Associate Judges Conference, July 2011*CLE Speaker/Author, “What Would Atticus Do–Most Common Ethical Mistakes Family Lawyers

Make,” SBOT Annual Marriage Dissolution Course 2011*CLE Speaker/Author, “Discovery–Getting What You Need, From Economical to Expensive,” UT

Family Law on the Frontlines Course, June 2011*CLE Speaker/ “Lawyer”, TAFLS 2011 Trial Institute, February 2011*CLE Speaker/Author, “Hots Tips on Hot Topics–Trusts,” New Frontiers in Family Law Course,

October 2010*CLE Speaker/Author, “It’s a Family Affair–Representing Relatives,” Advanced Family Law

Course 2010*CLE Speaker/Author, “Top 10 Tips for Settling and Negotiating Child Support,” SBOT Annual

Meeting CLE, Family Law Track, June 2010*CLE Speaker/Author, “Follow the Yellow Brick Road–Jurisdiction and Venue, SBOT Marriage

Dissolution 2010*CLE Speaker/Author, “Jurisdiction Jeopardy,” SBOT Advanced Family Law Course 2009*CLE Speaker/Author, “What Would Atticus Do?–Top 10 Ethical Mistakes Family Lawyers

Make,” UTCLE Family Law on the Frontlines, June 2009*CLE Speaker/panel, “Legislative Update,” UTCLE Family Law on the Frontlines, June 2009*Course Director, SBOT Advanced Family Law Drafting Course, December 2008;*CLE Speaker and Author, “Difficult Child Cases,” SBOT Advanced Family Law Course, August

2008*CLE Speaker, “Representing and Defending Against the Impaired Client, UTCLE Family Law on

the Frontlines, June 2008;*CLE Speaker and Author, “Discovery Grab Bag,” SBOT Advanced Family Law Course August

2007;*CLE Speaker and Author, “Divorce Beyond Hate,” SBOT Marriage Dissolution Institute, May

2007;*CLE Speaker and Author, “Digging Up Alcatraz: Revisiting The Rocks of Common Law and

Uncommon Claims (Reimbursement), SBOT New Frontiers in Marital Property Law,October 2006

*CLE Speaker and Author, “Nobody’s Doin’ What They’re S’posed To–Enforcing Child Supportand Possession Orders,” SBOT Advanced Family Law Drafting Course, August 2006

*CLE Speaker and Author, “Sleeping With the Enemy–Domestic Violence and Protective Orders,”SBOT Advanced Family Law Drafting Course, December 2005

*CLE Speaker and Author, “Here’s Hopi The Marriage Lasts–Protecting Separate PropertyThrough the Use of FLP’s, Corporate Structures and Trusts,” SBOT New Frontiers inMarital Property Course, October 2005

*CLE Speaker and Author, “Avoiding Getting Cross With Your Cross Client,” Advanced FamilyLaw Seminar, August 2005

*CLE Speaker and Author, “The Best Defense is a Good Offense: Defending ModificationsWithout the Third Prong,” Advanced Family Law Seminar, August 2004

*CLE Speaker and Author, “Sex, Drugs, and Body Piercing-Bad Facts in Custody Cases, Both forYa and Against Ya,” Advanced Family Law Seminar August 2003

*Panel member, ‘Custody Cases,’ Advanced Family Law Seminar, August 2003*CLE Speaker and Author, “Managing the File,” Advanced Family Law Seminar August 2002*CLE Speaker, “New Millennium Ethics for the Small Town Practitioner,” Navarro County Bar

Association, August 2001*CLE Speaker on Ethics, Local Bar Leaders Conference Las Colinas, Texas August 2000*Keynote speaker on Family Law, RACA conference, April 2007*Voted “Jacksonville’s Favorite Attorney,” Jacksonville Daily Progress 2004

COMMUNITY HONORS/ACTIVITIES*Member, St. Johns United Methodist Church, (Chancel Choir, Handbells, Trinity Singers,

Passionate Worship and Extravagant Generosity Committees) (July 2008 to present)*Member, Courtyard Tennis Club “Game On” and “Tequila Shots” Tennis League Teams (4.0

Ladies and 8.0 Mixed)*Advisor, Boy Scout Law Explorer Post (co-ed) 1995-2000*Certified Dive Master (professional level) and Rescue Diver**Specialty Certification–Shark Diving and Education (Grand Cayman, B.W.I.)*Member, United States Tennis Association (current rating–4.0)

-Quarter-finalist, 2005 National Mixed Doubles Championship (3.0)

PERSONAL INFORMATION:Born Mexia, Texas, March 7, 1967 to Joe B. and the late Alice Jean Sundberg CannonMarried Dr. Dirk Sheridan, Ed.D. November 6, 1993Proud owner (“mother”?) of Domino, Gizelle, and Excel,(dogs), and several unnamed salt water

fish....

Grandpa was a Rolling Stone B Representing RelativesBGrandparent and Third-Party Standing Chapter 1

i

TABLE OF CONTENTS

I. SCOPE OF ARTICLE ............................................................................................................................................. 1

II. CONSERVATORSHIP ........................................................................................................................................... 1 A. General standing statute. .................................................................................................................................. 1 B. Standing Statutes Specific to Relatives ............................................................................................................ 3

1. Grandparents ............................................................................................................................................ 3 2. Siblings .................................................................................................................................................... 4 3. Third Degree of ConsanguinityB .............................................................................................................. 4 4. Substantial Past ContactB ......................................................................................................................... 4 5. Original SuitsB ......................................................................................................................................... 4

a. Petitioning PartyB ............................................................................................................................. 4 b. Intervening in a pending caseB ......................................................................................................... 5 c. Burden of ProofB .............................................................................................................................. 5

6. ModificationsB ......................................................................................................................................... 6 C. Obligations of Non-parent ConservatorsB ........................................................................................................ 6

III. ACCESS AND POSSESSION ................................................................................................................................ 6 A. Grandparent AccessB ....................................................................................................................................... 6

1. Troxel and its progenyB............................................................................................................................ 8 2. (a) In Re Scheller and its aftermath .......................................................................................................... 9 3. Procedural Considerations and Temporary Orders ................................................................................ 10

IV. AUTHORIZATION AGREEMENTS FOR NON-PARENT RELATIVES ......................................................... 11 A. What=s allowed?B ........................................................................................................................................... 11 B. What=s not? (allowed)B .................................................................................................................................. 11

V. CONCLUSION ..................................................................................................................................................... 12

APPENDIX 1 ................................................................................................................................................................ 13

APPENDIX 2 ................................................................................................................................................................ 14

APPENDIX 3 ................................................................................................................................................................ 19

APPENDIX 4 ................................................................................................................................................................ 26

APPENDIX 5 ................................................................................................................................................................ 86


1

GRANDPA WAS A ROLLING STONE

B REPRESENTING

RELATIVESBGRANDPARENT AND

THIRD-PARTY STANDING

I. SCOPE OF ARTICLE

While the majority of our day-to-day child-related

cases involve parents as the only litigants, more and

more relatives are becoming involved in

conservatorship and access suits, either by choice or

necessity. As such, we, as family law practitioners,

must be familiar with the statutes and cases that govern

these unique situations. The Legislature is constantly

revisiting and revising the laws in this area, both

substantively and procedurally, as are the courts. We

must be very careful in our evaluation and handling of

these cases, as any misstep can result in serious

consequences to our clients.

Likewise, there seem to be enormous

misconceptions about exactly what remedies are

available for non-parent relatives in conservatorship

and/or access cases. What relief is available can vary

greatly depending upon the type of relief sought, or the

time or manner in which the suit is filed. The purpose

of this article is to explore the situations wherein a

relative may seek conservatorship and access,

procedural requirements and substantive law

considerations, as well as other methods of achieving

the relatives= goals that might not necessarily fit the

traditional custody/access litigation model.

II. CONSERVATORSHIP

With respect to representing relatives in family

law matters, it is most likely that the cases we will

encounter most often are those wherein the relative or

third party is actually seeking conservatorship of the

child, either through a joint managing conservatorship

(JMC) or a sole managing conservatorship (SMC).

The likelihood of success can depend on many factors,

including whether the suit is an original suit or

modification; which standing statute is applicable; the

degree of relationship to the child of the relative

seeking relief; whether procedural requirements were

followed; and the kind of relief sought. This section

of the article will address these issues as they relate to

a suit by a relative seeking actual conservatorship of a

minor child, and whether the relative/third party has

standing to do so.

A. General standing statute.

The Texas Family Code contains both a general

standing statute as well as standing provisions specific

to relatives. Thus, a relative of a minor child may

seek conservatorship under any standing statute,

general or specific, that applies to his or her particular

circumstances. Clearly, before a party is entitled to

pursue relief, that party must have standing to file the

suit in the first place. Thus, a firm understanding of the

standing statutes is crucial to ensure that the case is not

over before it gets started.

Texas Family Code '102.003 governs the general

standing to file an original suit by any individual that

meets the requirements set forth therein. Thus, if a

relative meets the criteria of any of the fourteen (14)

provisions conferring standing, the fact that they are a

relative is essentially irrelevant, unless otherwise

contemplated by the statute.

While TFC '102.003 addresses Aoriginal@ suits for

conservatorship, other provisions of the Family Code

refer to TFC '102.003 as a means for conferring

standing in a subsequent suit (e.g., modification).

Likewise, as TFC '102.003 does not require the party

seeking conservatorship to be a relative of the child, it

can provide grounds to achieve standing for a relative

seeking conservatorship in addition to the specific

standing statutes relating to relatives. As such, it is

important to understand the various provisions of the

general standing statute as it pertains to the relative

seeking relief.

The general standing statute sets forth in relevant

part:

A(a) An original suit may be filed at any time

by:

(1) a parent of the child;

(2) the child through a representative

authorized by the court;

(3) a custodian or person having the

right of visitation with or access to

the child appointed by an order of a

court of another state or country;

(4) a guardian of the person or of the

estate of the child;

(5) a governmental entity;

(6) an authorized agency;

(7) a licensed child placing agency;

(8) a man alleging himself to be the

father of a child filing in accordance

with Chapter 160, subject to the

limitations of that chapter, but not

otherwise;

(9) a person other than a foster parent,

who has had actual care, control, and

possession of the child for at least

six months ending not more than 90

days preceding the date of the filing

of the petition;

(10) a person designated as the managing

conservator in a revoked or

unrevoked affidavit of


2

relinquishment under Chapter 161

or to whom consent to adoption

has been given in writing under

Chapter 162;

(11) a person with whom the child and

the child=s guardian, managing

conservator, or parent have resided

for at least six months ending not

more than 90 days preceding the

date of the filing of the petition, if

the child=s guardian, managing

conservator, or parent is deceased

at the time of the filing of the

petition;

(12) a person who is the foster parent of

a child placed by the Department

of Protective and Regulatory

Services in the person=s home for

at least 12 months ending not more

than 90 days preceding the date of

the filing of the petition;

(13) a person who is a relative of the

child within the third degree by

consanguinity, as determined by

Chapter 573, Government Code, if

the child=s parents are deceased at

the time of the filing of the

petition; or

(14) a person who has been named as a

prospective adoptive parent of a

child by a pregnant woman or the

parent of the child, in a verified

written statement regardless of

whether the child has been born.

(b) In computing the time necessary for

standing under Subsections (a)(9), (11)

and (12), the court may not require that

the time be continuous and

uninterrupted but shall consider the

child=s principal residence during the

relevant time preceding the date of

commencement of the suit.

(c) Notwithstanding the time requirements

of Subsection (a)(12), a person who is

the foster parent of a child may file a

suit to adopt a child for whom the

person is providing foster care at any

time after the person has been approved

to adopt the child. The standing to file

suit under this subsection applies only

to the adoption of a child who is eligible

to be adopted.@

[TFC 102.003]

With the exception of subparagraph (13), then, the

fact that the person seeking conservatorship of a child is

a relative of the child is not relevant to confer standing,

as long as the elements of one of the provisions under

102.003 are met.

However, one of the most misconstrued provisions

of TFC '102.003 is subparagraph (9) of that statute

regarding a person who has had actual care, control and

possession of the child for at least six months. Many

cases have been filed under this statute based upon the

fact that the parent or parents of the child resided with a

relative (and the child) for a period of six months. This,

in and of itself is insufficient to confer standing upon the

party if the parents continued to act as parents and did

not actually or constructively abdicate their parental

duties to the party/relative.

The case of In re M.J.G., 248 S.W.3d 753

(Tex.App.BFort Worth 2008, no pet), speaks directly to

this issue. In that case, both the children and their

parents were living in their grandparents= home. The

grandparents later sought custody of the children after at

least six months had passed. The Ft. Worth Court of

Appeals held that although the grandparents did perform

day-to-day caretaking duties for the children, the

children=s parents were also living with the children in

the home, and there was no evidence that the parents did

not also care for the children or that they had abdicated

their parental duties and responsibilities to the

grandparents. Thus, grandparents did not establish the

six-month period of actual care, custody and control

necessary under TFC '102.003(9) to establish their

standing to file an original SAPCR petition. In re

M.J.G. at 758-759.

It would appear, then, that although TFC

'102.003(9) does not specifically require Aabdication@ of

parental duties in favor of the party seeking custody, at

least one appellate court seems to imply abdication is a

requirement. The degree of abdication, nature of the

parental duties performed, and the specific facts of each

case will be important factors in these matters.

Regardless, it appears that if one or more of the parents

reside with the child in the home of the party seeking

conservatorship, then something more than the mere fact

that the child lived with the party for more than six

months will be required.

A case that supports this proposition is Jasek vs.

TDFPS, 348 S.W.3d 523 (Tex.App.BAustin 2011). In

that case, children had been placed with the Jaseks by

the Department as foster parents for over two years,

while the Department was seeking termination of the

children=s biological parents= rights. At some point after

both parents= rights had been terminated but the children

remained with the Jaseks, Mr. Jaskek apparently failed a

drug test. The Jaseks sought to intervene in the prior

termination case (already completed) in the court of

continuing jurisdiction, stating that they had actual care


3

and control of the children for over six months (i.e.

two years). The Department objected, stating that

Aactual care and control@ under TFC 102.003(9)

required Alegal right of control@ and thus argued that

the Jaseks had not met their standing requirement.

The Department also objected stating that intervention

was not appropriate because there was no longer any

case pending before the court, since the terminations

had already been granted and thus there was a final,

appealable order.

The Austin court of Appeals agreed that

Intervention was not the proper procedural mechanism

to be before the trial court since there was no pending

case. However, the appellate court further stated that

contrary to the Department=s argument, the Jaseks had

given them sufficient notice of their intent to file suit,

and the mere >misnaming= of the petition would not

preclude them from proceeding.

More significantly, the court went on to hold that

Aactual care, custody and control@ did not require some

legal right to same, but instead turned on facts such as

who had provided for their daily care, protection,

control and reasonable discipline, basic needs for food,

shelter and medical care, and other day-to-day needs.

As such, the court found that the Jaseks had met the

standing requirements under 102.003(9).

It is interesting to note, however, that the Jasek

case did not involve a question of Aabdication@ of those

duties by a parent, since the children were placed in

foster care with the Jaseks by the Department, and the

parents= rights had been terminated.

B. Standing Statutes Specific to Relatives

In addition to the general standing statute found

in TFC '102.003, the Texas Family Code sets out

several other standing statutes specifically pertaining to

relatives seeking conservatorship (as opposed to

possession and access). Each of these will be set out

in detail below.

1. Grandparents

Perhaps the most common situations we family

lawyers encounter regarding relatives seeking

conservatorship is in representing (or defending

against) grandparents seeking conservatorship. It is

an unfortunate reality that many grandparents find

themselves in the position of providing for the daily

needs of their grandchildren, either because the child=s

parents cannot do so or will not do so. In recognition

of this issue, TFC '102.004 provides an additional

method of conferring standing upon grandparents who

might not otherwise meet the standing requirements set

forth in TFC ' 102.003.

Texas Family Code '102.004 provides as follows:

A(a) In addition to the general standing to file

suit provided by Section 102.003, a

grandparent, or another relative of the

child related within the third degree by

consanguinity, may file an original suit

requesting managing conservatorship if

there is satisfactory proof to the court

that:

(1) the order requested is necessary

because the child=s present

circumstances would significantly

impair the child=s physical health or

emotional development; or

(2) both parents, the surviving parent, or

the managing conservator or

custodian either filed the petition or

consented to the suit.

(b) An original suit requesting possessory

conservatorship may not be filed by a

grandparent or other person. However,

the court may grant a grandparent or

other person deemed by the court to have

had substantial past contact with the child

leave to intervene in a pending suit filed

by a person authorized to do so under this

subchapter if there is satisfactory proof to

the court 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.

(c) Possession of or access to a child by a

grandparent is governed by the standards

established by Chapter 153.@

[TFC '102.004]

Thus, even if a grandparent does not have standing

under the general standing statute, (i.e. has had

possession for over six months, et. al.), the fact that the

person is a grandparent can confer standing to file either

an original suit or an intervention in a pending suit if the

grandparent can present satisfactory evidence that

placing the child with the parents would significantly

impair the child=s physical health or emotional

development, OR if the parents consent. While this is a

heavy burden, it is also one that does not require the

lengthy time requirements of many of the provisions set

forth in the general standing statute.

Furthermore, as pertains to filing an intervention

under TFC '102.004(b), at least one appellate court has

held that the wording of the statute does not necessarily

require a close bond or long-standing relationship

between the grandparent and the child if the significant


4

impairment test is met. In the case of In re M.A.M.,

35 S.W.3d 788, 790 (Tex.App.BBeaumont 2001, no

pet.), the Beaumont court of appeals held that the

phrase Adeemed by the court to have had substantial

past contact@ modifies Aother person,@ and not

Agrandparent.@ As such, it would appear that the mere

existence of the grandparent-grandchild relationship is

sufficient to confer standing under 102.004(b) to file

an intervention in a pending suit, thus recognizing, if

not elevating, the status of grandparents, as opposed to

other persons related to or with substantial past contact

with the child.

Practice tip: Also in regard to grandparents

seeking conservatorship, keep in mind that while the

Supreme Court has held that the Grandparent Access

statute under TFC '153.433 does not apply to

step-grandparents (see In re Derzapf, 219 S.W.3d 327

(Tex. 2007). A step-grandparent may have standing

to seek sole or joint managing conservatorship under

the Asubstantial past contact@ provision of TFC

'102.004 (b). Make sure not to confuse standing for

actual conservatorship with standing for grandparent

access under Chapter 153. The former grants actual

conservatorship status, while the latter only addresses

possess and/or access for a grandparent.

2. Siblings

In addition to the specific grandparent and

Aperson with substantial past contact@ standing

provisions, there is a special provision relating to

siblings under TFC '102.0045. However, the statute

only applies in DFPS cases where a child has been

separated by the sibling as a result of the department=s

actions, and it only applies to access and possession,

not conservatorship. (See TFC '153.551).

Additionally, the sibling seeking access must be an

adult. Thus, with regard to conservatorship, the

sibling seeking conservatorship must meet the other

standing requirements found under TFC '102.003 or

TFC '102.004.

3. Third Degree of ConsanguinityB

A relative within the third degree of

consanguinity is one who is a

great-grandparent/grandchild; a great-

uncle/aunt/nephew/niece; children of great uncle/aunt;

children of first cousins; or the child=s second

cousin(s). Thus, under TFC '102.004 (a), only

relatives within this level of affinity may file suit for

conservatorship, unless they independently meet one of

the other general standing thresholds under TFC

102.003. Attached as an appendix to this paper is a

consanguinity chart which may be helpful in those rare

circumstances when a distant relative may be seeking

your advice in this regard.

4. Substantial Past ContactB

As stated above, TFC '102.004 allows a person

who shows >substantial past contact with a child= to

intervene in a pending suit to seek conservatorship.

Please remember, however, that this remedy is limited to

filing an intervention, not an original suit for

conservatorship. In other words, the person with

substantial past contact who is seeking conservatorship

can only do so if he/she is intervening in a current,

pending case that was filed by appropriate parties with

standing. If there is not a current pending action before

the court, then a the party asserting >substantial past

contact= must qualify under some other standing statute

(e.g. actual possession for at least 6 months, etc.).

Nonetheless, TFC '102.004 opens wide the gates

to anyone who has had substantial past contact with the

child to intervene in a pending suit. Presumably this

could be teachers, neighbors, daycare workers, school

bus drivers, etc. Clearly it will depend upon the

specific facts of the case. The wording of the statute

seems to imply a need for a threshold determination by

the court. Thus, if you are opposing the intervenors,

you may want to file a Motion to Dismiss Third Party

Intervention and request a hearing for the court to

determine whether there is sufficient Asubstantial past

contact@ to merit standing. Likewise, such a hearing

should also include asking the court to determine

whether or not the Asignificant impairment@ requirement

is met. Both are required for standing to intervene. In

any case, each situation will have to be evaluated on a

case-by-case basis by the trial court with respect to the

specific circumstances of each case. [See In re C.M.C.

192 S.W.3d 866, (Tex.App.B Texarkana 2006, no

pet.)Bsubstantial past conduct is inherently a

fact-intensive inquiry impossible to formulate a concise

standard....The Legislature intended the standard to be

flexible in order to deal with >inevitable situations.]

5. Original SuitsB

As mentioned above, both the statutes and the case

law distinguish between standing for original suits and

standing for subsequent suits (e.g. modifications).

Additionally, there are also specific requirements within

each category. While several of those requirements

have been touched on, the following are the specific

rules as pertain to whether the action is an original suit

or a modification.

a. Petitioning PartyB

At a minimum, a relative or third party seeking

conservatorship in an original proceeding (which could

actually include a modification if there is no current

pending matter before the court) must establish and

plead sufficient facts and grounds to have standing to

pursue the action. Thus, while a party seeking

conservatorship via an original suit is not required to


5

plead every fact upon which they rely to confer

standing, they at least have to track the statutory

language and cite the Family Code provision upon

which they rely for standing. For example, at least

some showing that the person is related within the

third degree of consanguinity (e.g. APetitioners are the

aunt and uncle of the child the subject of this suit.@) would be required. They must also set forth the

general allegations upon which they rely for standing.

(E.g. APetitioners have standing to seek

conservatorship under TFC '102.004 in that they are

the paternal aunt and uncle of the child the subject of

this suit, and would show that appointing them joint

managing conservators is necessary because the child=s

present circumstances would significantly impair the

child=s physical health or emotional development.@)

If a party meets the standing requirements to file an

original suit, one would presume that they also meet

the requirements to intervene in a pending suit. The

reverse, however, is not the case.

b. Intervening in a pending caseB

TFC '102.004 discusses the requirements for a

Agrandparent or other person deemed by the court to

have had substantial past contact@ leave to intervene in

a pending suit. In other words, a party that might not

otherwise independently meet the general standing

requirements of TFC '102.003 or the specific

requirements of TFC '102.004(a), may be able to

intervene if they meet the requirements of TFC

'102.004 (b), that being the significant impairment

test. However, while this may broaden the pool of

people who might seek conservatorship, it also limits

the remedy to a currently pending case. Thus, even if

a person has substantial past contact and there may be

a significant impairment to the child if parents are

appointed SMC or JMC, if there is no pending lawsuit

before the court at the time the third party files, there is

nothing to Aintervene into.@ As such, the party would

have to meet some other statutory standing

requirement sufficient to file an original suit, or the

petition cannot stand.

c. Burden of ProofB

We all know that the burden of proof lies with the

party seeking affirmative relief. Thus, whether filing

an original suit or intervention, the burden is on the

filing party to prove the elements of their cause of

action

Unfortunately, there seems to be a great deal of

confusion among practitioners and judges about the

difference between the necessary elements to confer

standing and the facts sufficient to prove one=s burden

of proof on the ultimate relief requested. Some of that

confusion may be that some of the standing statutes

incorporate the same language as the statutes that set

forth the burden of proof to support relief, and

sometimes they are actually intertwined. However, it is

important to understand the difference, because whether

a party may ultimately succeed in final disposition is a

different question than whether they have the initial

right/standing simply to bring suit.

For example, a person who has had actual care,

control and possession of a child for over six months

under TFC '102.003 (9), has standing to seek

conservatorship of the child, regardless of whether

he/she can meet their burden of proof on the ultimate

issue. If it is an original suit where the third party is

seeking conservatorship and one or more of the parents

of the child object, the party must ultimately show that

appointment of the parent/s would significantly impair

the child=s physical health or emotional development

under TFC '153.131, which sets forth the Aparental

presumption.@ However, the party does not have to

make a threshold showing of significant impairment just

to be able to file the case. They have standing to file

suit if they otherwise meet the requirements of TFC

'102.003. But remember, having standing to file suit

does not alleviate the party=s burden to prove the

remaining elements of their case. It simply gives them

the ability to have their day in court on the ultimate

merits.

Compare that situation, however, to the actual

standing requirement of TFC '102.004 (a), which

requires for standing to file suit not only that the person

be related to the child within the third degree of

consanguinity, but also that they allege and provide

satisfactory proof that appointment of the parents would

significantly impair the child=s physical health or

emotional development, or that the parents consent to

the suit. Thus, although we know that if it is an original

suit the party must overcome the parental presumption

by showing significant impairment to the child, TFC

'153.004 (a) also requires proof of significant

impairment as a threshold showing to even have

standing to file suit. Again, if you are representing a

parent or party who objects to the involvement of the

third party seeing conservatorship under this provision,

it may be wise to request the court hold a hearing to

determine if there is >satisfactory proof= of significant

impairment to confer standing. This is an area that has

been discussed by the Family Law Section Legislative

committee regarding the procedure to determine

standing under this provision, and whether to provide

statutorily for a preliminary standing hearing when a

relative/third party asserts standing under this staute.

Understanding the difference between standing to

file suit and the burden of proof on the substantive

issues is important because the burden of proof can be

different depending upon whether the case is an original

suit or a modification. In some instances, the burden of

proof to succeed ultimately in a final hearing on the


6

merits may be vastly different than in an original suit.

This is particularly true in the area of third party

litigation in modifications. However, even though the

burden may not be as great in a modification, the

standing requirements for each particular case still

must be met.

6. ModificationsB

As stated above, the Family Code imposes a

>parental presumption= in original suits for parents over

third parties seeking conservatorship. However, no

such presumption applies to modifications filed by

relatives/third parties. Specifically, the Texas

Supreme Court held in the case of In re V.L.K., 24

S.W.3d 338 (Tex.2000) that the Legislature apparently

did not intend for the parental presumption to apply in

modification proceedings because no presumption akin

to TFC '153.131 was included in the modification

provisions set forth in Chapter 156.

Unfortunately, it appears that many lawyers (and

some judges) misapply the V.L.K. case to standing

issues as opposed to burden of proof issues. If a third

party files a modification action, even though there is

no parental presumption for the ultimate outcome, the

third party still may not succeed if he/she has not met

the standing requirements under which the third party

is attempting to come before the court. For example,

if a grandparent wants to file a modification action for

conservatorship, but has not met one of the standing

provisions of TFC '102.003 (e.g. actual possession for

at least 6 months), he/she may try to acquire standing

under TFC '102.004, which allows relatives within the

third degree of consanguinity to have standing without

meeting length of possession requirements. As far as

the ultimate determination of conservatorship, there is

no parental presumption of significant impairment to

overcome. However, this may be a distinction

without a difference, because TFC '102.004 requires a

showing of significant impairment to even have

standing to file suit in the first place. In other words,

the standing statute itself incorporates a parental

presumption that would not otherwise be required in a

modification if the party had standing under the

general statute of TFC 102.003.

In contrast, however, the grandparent/third party

that otherwise meets the general standing requirements

of TFC '102.003 (e.g. actual possession for 6 months),

only has to show Abest interest@ in a modification if the

third party has standing under a provision that does not

require a showing of significant impairment. It

appears that much of the confusion is caused by the

fact that the parental presumption definition contains

the identical wording of some of the standing

provisions. Nonetheless, there are factual scenarios

that contemplate a third party having standing to file a

modification and not being required to prove

significant impairment. As such, when representing

third parties in a potential modification, it is important to

explore all possible theories of standing that would have

the effect of lessening the burden of proof on the

ultimate issue.

C. Obligations of Non-parent ConservatorsB

Regardless of whether non-parents are awarded

conservatorship in an original suit or modification, there

are additional requirements imposed upon them once

they are named conservators. If named managing

conservators (sole or joint) they have all the rights and

duties of a parent managing conservator, plus oneB they

have the right to seek adoption of the child if the

parents= rights have been terminated by court order or

death, and the right to consent to adoption of the child.

The most notable additional obligation imposed

upon a third-party managing conservator is that the

conservator is required to file an annual report with the

court regarding the child=s welfare, location and physical

condition. [See TFC '153.375]. Interestingly, although

these reports are statutorily required to be filed with the

court, they cannot be admitted in evidence in a

subsequent suit. [TFC '153.375 (b)]. Thus, if

representing a successful non-parent relative in a

SAPCR, it will be important to inform the client of the

ongoing annual obligation of reporting on the child=s

welfare, although it remains unclear what penalties are

available for failing to comply with this requirement.

III. ACCESS AND POSSESSION

In addition to outright conservatorship, relatives

may be able to seek access (i.e. visitation) with the child,

even if they do not want/seek primary custody of the

child. The right and ability to seek access, however, is

greatly limited by both statutes and case law. Different

rules apply to different types of relatives, which will be

discussed below.

A. Grandparent AccessB

Because of the now infamous case of Troxel v.

Granville, 530 U.S. 57 (2000), we have some

constitutional guidance regarding what are commonly

referred to as Agrandparents= rights@ cases.

Unfortunately, the appellate opinions are all over the

place on some of the finer points, and the Texas

Legislature recently amended the statute that now

imposes certain procedural requirements in addition to

the substantive ones. There are several grandparent

access cases currently pending before the Texas

Supreme Court at the time this article was submitted,

and it will be interesting to see what results are

forthcoming with respect to overcoming the parental

presumption-like requirements imposed by the Texas

statute.


7

The Texas grandparent access statutes are set

forth in TFC ''153.432-434. Section 153.432

primarily states that a grandparent has standing to

request access to (as opposed to conservatorship) a

child, regardless of whether managing conservatorship

is an issue in the case. In other words, a grandparent

may file a Astand alone@ suit for visitation without

seeking managing conservatorship. The amendment

to TFC '153.432, effective September 1, 2009, adds

the requirement that an affidavit be attached which

alleges facts sufficient to meet the burden of proof set

forth in TFC '153.433. Specifically, TFC '153.432

(c) provides:

A(c) In a suit described by Subsection (a),

the person filing the suit must execute

and attach an affidavit on knowledge or

belief that contains, along with

supporting facts, the allegation that

denial of possession of or access to the

child by the petitioner would

significantly impair the child=s physical

health or emotional well-being. The

court shall deny the relief sought and

dismiss the suit unless the court

determines that the facts stated in the

affidavit, if true, would be sufficient to

support the relief authorized under

Section 153.433.@

This addition was part of a compromise between

the drafter of the bill and the Family Law Foundation

during the 2009 Legislative session. Essentially, the

original draft of the legislation, among other things,

imposed a much higher burden (clear and convincing

evidence as opposed to preponderance of the

evidence), and significantly restricted a grandparent=s

ability to ever be able to succeed in an access suit,

even if successful in showing that denial of access

would significantly harm the child. The compromise

codified in the 2009 amendment thus retains the

original burden of proof, but imposes a higher

procedural burden upon the grandparent seeking

access, much like the affidavit requirement for parties

seeking a modification of conservatorship within a

year of the prior order. The affidavit in both

circumstances is intended to provide a hurdle to

litigants in an effort to curb questionable filings. The

affidavit now required to be attached to grandparent

access pleadings is almost identical to the one required

for modification of conservatorship within one year.

The >significant= impairment language is the same

burden of proof in both instances, and thus now there

is more uniformity of what is required in the affidavits.

The Texas statute that sets forth the burden of proof

for grandparent access cases is TFC '153.433, which

states in relevant part:

A(a) The court may 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



is a parent of a parent of the child

and that parent of the child:

(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.

(b) An order granting possession of or access

to a child by a grandparent that is

rendered over a parent=s objections must

state, with specificity that:

(1) at the time the relief was requested,

at least one biological or adoptive

parent of the child had not had that

parent=s parental rights terminated;



has overcome the presumption that a

parent acts in the best interest of the

parent=s child by proving by a

preponderance of the evidence that

the denial of possession of or access

to the child would significantly


8

impair the child=s physical health

or emotional well-being; and



is a parent of a parent of the child

and that parent of the child:

(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.@

Section 153.433 was also amended during the

2009 session to require that any order on cases filed on

or after September 1, 2009 must make specific

findings that the statutory requirements were met, and

must further set forth those findings specifically within

the order.

In addition to the aforementioned sections, TFC

'153.434 places limitations on the standing of a

grandparent to file suit. Being a grandparent may not

be enough to request visitation. TFC '153.434 states

in relevant part:

AA biological or adoptive grandparent may

not request possession of or access to a

grandchild if:

(1) each of the biological parents of the

grandchild has:

(A) died;

(B) had the person=s parental rights

terminated; or

(C) 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

(2) the grandchild has been adopted, or is

the subject of a pending suit for

adoption, by a person other than the

child=s stepparent.@

The crux of this statute is basically that if both

parents= rights have been terminated, either by death or

through legal proceedings, the grandparent no longer has

standing to seek access. This would not, however,

prevent a guardianship or conservatorship action under

TFC '102.003, but would prevent a suit seeking

visitation only.

At the time of the submission of this article, the

Family Law Section Legislative committee has drafted

proposed legislation that would modify this statute and

eliminate the requirements that a grandparent have

standing only if a parent is dead, incarcerated, mentally

incompetent, or does not otherwise have court-ordered

access. The proposed legislation, if approved by the

Section and ultimately passed in the Legislature, would

provide that any grandparent of a child has standing to

seek access (i.e. parent(s) does not have to be dead,

incarcerated, incompetent, etc.). The grandparent

would still be required to meet his/her burden of proof in

a final merits hearing, but it would expand the pool of

potential grandparents who would at least have the

initial standing to seek access.

1. Troxel and its progenyB

By now it is fairly widely known that the seminal

case regarding grandparent access is the United States

Supreme Court case of Troxel v. Granville, 530 U.S. 57

(2000 ). What seems to cause confusion, however, is

how that case affected Texas law, both statutory and

common law, and how the finer points of some of the

issues are to be decided in light of the holding therein.

In 2005, the Texas Legislature amended TFC '153.433

in an effort to come into compliance with Troxel. The

primary holding of Troxel provides that in grandparent

access cases, the grandparent must overcome the

presumption that Aa fit parent acts in the best interest of

his/her child.@

It has been argued, however, that the Texas statute

may actually go a step further than Troxel, because it

actually defines what that presumption is. Section

153.433 defines the presumption as requiring a showing

that denial of access would significantly impair the

child=s physical health or emotional well-being. It is

questionable as to whether Troxel really requires such a

high burden of significant impairment. Nevertheless,

the Texas statute imposes this burden to even obtain

access, which burden is almost identical to the

requirements of a grandparent seeking custody in an

original suit under 102.004, or in a modification if the

grandparent does not independently meet one of the

general standing provisions of TFC '102.003.

It can also be argued that the burden established by

the Legislature is so narrow as to all but prevent

grandparents from obtaining access in almost any

situation. The majority of Texas grandparent access

cases have turned on the specific issue of whether the


9

facts presented to the court were sufficient to show a

significant impairment.

As set forth in the statute, significant impairment

can be met one of two ways: physical health or

emotional well-being. One would presume that most

cases involving significant impairment to the child=s

physical health would likely at least start as a request

for managing conservatorship that would remove the

child from the dangerous situation, although there may

be a few instances where the simple denial of

grandparent access might result in the child

experiencing physical detriment. However, it is likely

that the most common basis for seeking and granting

grandparent access would be the emotional harm that

might result if that grandparent-grandchild bond was

terminated. How to prove that denial of grandparent

access would result in such harm is no easy task, and

the Texas cases are inconsistent in their findings.

Presumably evidence would have to be presented

of the length and nature of the relationship and the

specific facts that could lead the fact finder to believe

that denial of access would result in significant

emotional harm. Again, however, these cases turn on

the specific facts of each case, and what may have

seemed sufficient in one may not necessarily be

sufficient in another. Several of the more notable

cases are discussed below.

In the case of In re Derzapf, 219 S.W.3d 327

(Tex. 2007), the Texas Supreme Court held that

although the court-appointed expert in that case

testified that the children would benefit from contact

with the grandmother, there was no evidence that

denial of access would significantly impair the

children. In re Derzaph, at 327. In fact, it was noted

in Derzaph that the expert actually testified that the

children had benefitted from decreased contact with

the grandmother due to her actions of undermining the

father=s initiatives, and that the children should first

renew contact with their step-grandfather and uncles

prior to renewing contact with the biological, maternal

grandmother. [See In re Derzaph, at 334.] (emphasis

added).

Whether denial of access would significantly

impair a child=s emotion well-being is about as

subjective as one can possibly imagine. Apparently,

however, (at least according to Derzaph), it has to be

something more than mere speculation and a finding

that access would be in the child=s best interest. There

must be sufficient evidence that could lead a

reasonable fact-finder to believe that the denial would

cause significant emotional harm.

One way of proving this would presumably be

through expert psychological testimony. However, if

the relationship between the grandparent and other

parent has deteriorated to such an extent that the

grandparents believe they need court intervention to

obtain access, the likelihood of having that sort of

evidence in the beginning is unlikely. Nonetheless,

none of the cases stand for the proposition that the

burden can never be met, but simply that the evidence

must be sufficient to show harm. What that is remains

to be seen and always will turn on the specific facts of

the case. We have several cases where the appellate

courts have determined the evidence insufficient, but

precious little where they have found it sufficient.

Nonetheless, Texas courts have long recognized the

importance of awarding grandparents access to their

grandchildren in appropriate cases, and has a compelling

interest in providing a forum for grandparents having a

significant existing relationship to petition for access to

their grandchildren. [See In re Pensom, 126 S.W.3d

251, 255 (Tex. App.San Antonio 2003, orig.

proceeding); Lilley v. Lilley, 43 S.W.3d at 712. A statute

allowing grandparent access only under particular

circumstances, and provided it is in the grandchild=s best

interest, does not violate a parent=s rights. [See Lilley v.

Lilley, 43 S.W.3d at 711.] Furthermore, several

courts have held that Aaccess@ does not necessarily mean

Apossession@ or visitation. Thus, one could imagine an

example whereby the court ordered telephone contact or

other forms of communication, and not actual visitation.

[See e.g. Gonzales v. Graydon 28 S.W.3d 825, 831

(Tex.App.BCorpus Christi 2007, no pet.)BAA person

with rights of Aaccess to@ children may approach them,

communicate with them and visit with them, but may

not take possession or control of the children away from

the managing conservator. A person with rights to

Apossession of@ children may exercise possession and

control of the children, to the exclusion of all other

persons including the managing conservator, during

periods of possession. A person with rights of

possession of children also has rights and

responsibilities toward their care and behavior. Citing

Blalock v. Blalock, 559 S.W.2d 442, 443

(Tex.App.-Houston [14th Dist.] 1977, no writ)

(possessory conservator has duty to provide for child

during periods of possession but the duty is limited to

those periods). The Family Code does not define the

terms Apossession@ and Aaccess.@ When a statute does not

define a term, we apply the term's ordinary meaning.@]

2. (a) In Re Scheller and its aftermath

Possibly the single-most tragic case regarding

grandparents, not to mention potentially incorrectly

decided (which is the author=s opinion since it was the

author=s case!), is the Texas Supreme Court decision in

In re Scheller, 325 S.W.3d 640 (Tex. 2010). In Scheller,

after a temporary orders hearing, the trial court entered

temporary orders that: 1) provided for periods of

grandparent access and possession of the children; and

2) appointed a PhD psychologist to investigate the

situation and report to the court whether denial of access


10

to their grandfather would significantly impair the

children=s physical health or emotional well-being.

At the temporary orders hearing, substantial

evidence of the bond and relationship between the

children and their grandfather was presented, including

the enormous amount of time the children spent with

the grandfather both before and after their mother (the

grandfather=s daughter) had passed away, the support,

both financial and emotional, that the grandfather had

provided after the death of his daughter (the mother of

the children), and the abrupt denial of access that

occurred when the father of the children became

romantically involved with a woman he married within

a few days before the temporary orders hearing.

Considerable testimony was presented by the

grandfather himself, as well as the children=s

step-grandmother (who had also been involved in the

children=s lives since each of their births, and several

lay witnesses who had ongoing observations of the

relationship between the children and their

grandfather.

Subsequent to the temporary orders hearing, the

father of the children, Scheller, filed a mandamus and

request for stay in the Austin Court of Appeals. The

Austin Court ultimately affirmed the trial court=s ruling

on the temporary orders, denied mandamus relief, and

dissolved the stay. Scheller then filed a mandamus in

the Texas Supreme Court and requested a stay until a

decision was issued. The two main issues before the

court at that juncture were: 1) whether temporary

access should have been granted (i.e. whether the

grandfather had met his burden for access); and (2)

whether the trial court abused its discretion in

appointing an expert to investigate the ultimate issue,

that being whether denial of access would significantly

impair the children=s physical health or emotional

well-being.

Approximately nine-and-a-half months later, the

Supreme Court finally issued a per curiam opinion.

The trial court granted the mandamus relief as to

temporary access issue, stating the grandfather had

failed to meet the statutory burden for access, but

denied mandamus relief as to the appointment of the

expert. In so doing, the court stated that it was within

the trial court=s authority to appoint an expert to assist

the court in making factual determinations regarding

whether depriving the grandfather of access would

significantly impair their physical health or emotional

well-being.

It is the author=s opinion that this decision is a

travesty for several reasons, not the least of which is

the (possibly unintended) far-reaching implications of

these findings. First, implicit in the opinion is the

idea that lay testimony is somehow insufficient to meet

evidentiary requirements or a basis upon which the

court to rely. The tragedy thus lies in the fact that, if

the Supreme Court is implying that only expert

testimony is sufficient to meet the burden of 153.433,

under what circumstances could a grandparent ever be

successful in obtaining temporary or permanent

grandparent access to a child unless:(1) an expert had

coincidentally already been in place and could offer such

testimony; or (2) in the case of a final order, the parties

had sufficient funds to pay for the appointment of an

expert to investigate and make a report or

recommendation to the court in that regard? Thus, it

would appear that the ultimate effect of the Scheller

opinion seems to imply that only expert testimony will

be considered sufficient to support an order of access

that is based upon emotional impairment (as opposed to

impairment to physical health). It is this author=s

sincere hope that trial courts will not interpret Scheller

in such a way as to preclude or minimize lay testimony,

that has been an accepted type of evidence in

jurisprudence for hundreds of years.

As a result of the potential unintended effects of

this opinion, the Legislative Committee of the Family

Law Section is proposing legislation that will propose

two substantive changes to the Grandparent Access

statutes: (1) make clear that the burden of proof to

sustain a grandparent access suit does not require (but

could include) expert testimony; and (2) that any

grandparent (i.e. the parent of a parent of the child the

subject of the suit) may have standing to seek access,

and is not dependent upon a parent of the child being

dead, incarcerated, incompetent or otherwise does not

have court-ordered access or possession. Pending

approval by the Family Law Section and the State Bar

Legislative Committee, the proposed legislation will be

included in the Section legislative package to be

supported and promoted by the Texas Family Law

Foundation.

3. Procedural Considerations and Temporary Orders

How, then, does one obtain grandparent access

under the current statutory scheme? While difficult, it

is not impossible.

Certainly, the procedural requirements must be met,

which means making sure that the required affidavits are

attached to the pleadings, and that there are specific

facts set forth in the pleadings which, if taken as true,

could support the relief requested. This is likely in the

form of affidavits setting forth the facts showing the

length of the grandparent/grandchild relationship, the

nature and frequency of the contact, the circumstances

surrounding the absence of the parent that allows the

grandparent to seek access (e.g. the tragic death of the

parent, etc), and so forth. The more facts that the

grandparent can allege to show that the

grandparent/grandchild relationship was of such a

degree that it could be reasonably concluded that harm


11

would result by interfering with the contact, the higher

the chance of succeeding in the request for access.

One key to how to go about this can be found in

the Derzaph case. In that case, the grandparents

requested temporary orders wherein the court

appointed an expert psychologist to evaluate the

situation and make a recommendation regarding

whether the denial of access would significantly impair

the grandchildren. Unfortunately for the grandparents

in Derzaph, the expert testified that [s]he did not

believe the situation rose to the level of >significant

impairment,= and in fact stated that because of the

grandmother=s questionable tactics and behavior,

access might actually be detrimental. Nonetheless,

Derzaph seems to at least suggest that a court could

enter temporary orders to investigate the issue and

appoint an expert to assist the fact finder in that regard.

The ultimate conclusion, then, is that there exists

no bright line, litmus test for when grandparent access

is appropriate, and not too much direction from the

courts in that regard. Hence, the best advice that

could be offered is to be creative, and to make sure to

plead as many facts surrounding the grandparent

relationship as possible to increase the likelihood of a

favorable result. Likewise, seeking temporary orders

relief for expert assistance in that regard could prove

extremely beneficial.

IV. AUTHORIZATION AGREEMENTS FOR

NON-PARENT RELATIVES

One unique and creative result of the 2009

Legislative session was the creation of an entirely new

statute designed to address those situations where a

non-parent relative needed authority to act and/or make

decisions for the benefit of the child, but did not

necessarily have the desire (or more likely the means)

to seek court-ordered conservatorship. The

unfortunate state of affairs is that there are many

non-parent relatives in Texas who have possession of

children because the parents cannot, or will not take

care of them, but the relative in actual possession of

the child is literally hog-tied from making day-to-day

decisions for health care, education, and other issues

that arise. This is often the case when the relative has

limited financial resources and cannot afford to hire an

attorney to do what is necessary to obtain legal

conservatorship.

In response to this growing problem, several

different groups, primarily the legal service provider

community, proposed legislation to address these

issues. The task proved harder than anticipated,

because the original proposed legislation had some

fairly serious unintended consequences regarding

interference with prior court orders and courts of

continuing jurisdiction, not to mention conflicts with

certain due process rights. The resulting solution is

found in Title 2 of the Texas Family Code, Chapter 34,

which now provides for an Authorization Agreement to

be executed without abdicating the rights of parents and

courts of continuing jurisdiction.

A. What=s allowed?B

In a nutshell, the statute allows either both parents

or just one parent to authorize a grandparent, adult

sibling of the child, or adult aunt or uncle of the child, to

authorize medical, dental, psychological, surgical

treatment and immunizations of the child, including

executing HIPPA releases to provide relevant

information to the caregiver and service provider. It

further authorizes the relative to obtain health insurance

for the child, to enroll the child in school and participate

in extra-curricular activities, to obtain a learner=s driving

permit, and to apply for and receive public benefits on

behalf of the child. It likewise authorizes the relative

the ability to consent to the child being employed.

The authorization agreement must meet certain

requirements to be valid, including the identity and

signatures of the parent providing the authorization and

relative accepting the authority, the relationship to the

child, relative=s current address, parent=s address, the

specific acts the relative is authorized to perform in

relation to the statute, and that the authorization is not in

violation of the authority of another parent, guardian,

custodian, agency or court of continuing jurisdiction.

Further, the agreement must provide that the parent, or

other parent, can terminate the authorization at any time,

and must provide that the other parent (if not joining in

the authorization) with a copy of the authorization to

that parent=s last known address within 10 days of the

execution of the authorization. (See TFC ''34.003 and

34.005). It further provides for a criminal penalty for

knowingly making false statements in the authorization

or for attempting to use an authorization that they know

has been revoked or is invalid. (See TFC '34.009).

Several different state statutes require specific state

agencies to create and make available to the public, free

of charge, forms that comply with Chapter 34 of the

Texas Family Code. Attached as an appendix is one of

the sample forms from the Texas Department of Family

and Protective Services. Similar forms can be found on

the websites of the Texas Education Agency and various

legal service providers.

B. What=s not? (allowed)B

The statute specifically prohibits the authorization

from permitting the relative to consent to an abortion or

other emergency contraceptive. It further does not

confer the rights of a managing conservator or

possessory conservator upon the relative, other than

those specifically allowed in the authorization and is not

intended to divest the parent of those rights. The

agreement must further contain extensive warning


12

language in this regard, and must specifically be

approved by the court of continuing jurisdiction if any

prior orders regarding the child exist.

V. CONCLUSION

Representing relatives poses unique problems and

issues, and a thorough understanding of the statutes is

required to ensure that the statutory requirements are

met. Creativity is essential in the pleadings and proof

of these cases, but when careful to follow the

mandated provisions, these actions can often be

successful. Careful attention to detail and facts can

make the difference in whether the case proceeds to

final hearing or is dismissed for procedural

deficiencies early on.

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3

31

1 2 3

2 3 4 576542

4 5 6 7 8 91 11 0987654

Grandpa was a Rolling Stone - Representing Relatives - Grandparent and Third-Party Standing Chapter 1

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NO.09-0000

IN THE SUPREME COURT OF TEXAS

IN RE ASHLEY WILKES

___________________________________________________________

Original Proceeding From the 1st Judicial District Court of Travis County, Texas

Subsequently heard and denied by the Third Court of Appeals at

Austin, Texas ___________________________________________________________

REAL PARTY IN INTEREST=S BRIEF IN SUPPORT OF RESPONSE TO

RELATOR=S PETITION FOR WRIT OF MANDAMUS

JOAL CANNON SHERIDAN AUSLEY, ALGERT, ROBERTSON & FLORES, LLP

3307 Northland Drive, Suite 420 Austin, Texas 78731 Tel:(512) 454-8791 Fax:(512) 454-9091

State Bar No. 00783784

Attorneys for Colonel Mustard, Real Party in Interest

ORAL ARGUMENT REQUESTED


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March 1, 2010

NO.09-0000

In Re Ashley Wilkes

Supreme Court of Texas

___________________________________________________________

Original Proceeding From the 1st Judicial District Court of Travis County, Texas

Subsequently heard and denied by the Third Court of Appeals at

Austin, Texas

___________________________________________________________

REAL PARTY IN INTEREST=S RESPONSE TO RELATOR=S PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

Pursuant to Texas Rule of Appellate Procedure 52.4, and in

accordance with the January 29, 2010 letter ruling from this

Honorable Court requesting briefing pursuant to Texas Rule of

Appellate Procedure 55.1, Colonel Mustard, Real Party in

Interest, files this Response to Relator=s Petition for Writ of

Mandamus, and in support of this would show the Court as follows:


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TABLE OF CONTENTS

Page

I. Statement of the Case/Nature of the Proceeding . . 1

II. Statement of Jurisdiction. . . . . . . . . . . . . 4

III. Statement of the Facts . . . . . . . . . . . . . . 5

IV. Response to Issues Presented in Relator=s Petition. 8

V. Argument

Issue 1: Mandamus is not justified in this case. . 9

Issue 2: The trial court did not abuse its Discretion in granting temporary orders and did not lack jurisdiction under the holding in Derzaph. . . . . . . . . . . . 15

(1) The trial court did not abuse its discretion in granting temporary orders providing for grandparent access in this case. . . . . . . . . . . 17

A. Real Party in Interest, Colonel Mustard,

met the statutory burden set forth in Texas Family Code '153.433 by showing by a preponderance of the evidence that denial of access to his grandchildren would significantly impair their physical health and/or emotional well-being, thereby overcoming the Ahigh threshold@ burden acknowledged in Derzaph. . . . . . . . . . . . . . 17


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B. Real Party in Interest, Colonel Mustard, was not required to prove Relator Aunfit@ standing alone, but instead overcomes the Afitness@ presumption by proving by a preponderance of the evidence that denial of access would significantly impair the children=s physical health or emotional well-being. . . . . . . 35

Issue 3: The trial court did not abuse its discretion in appointing an expert to evaluate the parties and to make recommendations to the court . . . . 44

Conclusion . . . . . . . . . . . . . . . . . . . . . . . 48 Prayer . . . . . . . . . . . . . . . . . . . . . . . . . 51

Certificate of Service. . . . . . . . . . . . . . . . . 52

Certificate of Conference . . . . . . . . . . . . . . . 52

INDEX OF AUTHORITIES

Cases Page

Dolman v. Dolman, 586 S.W.2d 606 (Tex. Civ. App.BAustin 1979, writ dism=d). . . . 38

In re American National Insurance Company, 242 S.W.3d 831, 833 (Tex. App.BEl Paso 2007, orig. proceeding) . . . . . . . . . . . . . . . 10

In re Barber, 982 S.W.2d 364 (Tex. 1998) . . . . . . 10,31 In re B.N.S., 247 S.W.3d 807 (Tex. App.BDallas

2008, no pet.). . . . . . . . . . . . . . . . . 10 In re Chambless, 257 S.W.3d 698 (Tex 2008)

(orig. proceeding). . . . . . . . . . . . . . . 16,17


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In re Derzaph, 210 S.W.3d 327,

50 Tex. Sup.Ct.J. 563 . . . . . . . . . . . . . 8,9,15 17-22 25,28 33-34 43,45 49

In re J.M.T., 280 S.W.3d 490 (Tex. App.-Eastland 2009, no pet.). . . . . . . . . . . 29

In re J.P.C., 261 S.W.3d 334, 335

(Tex.App.-Fort Worth 2008, no pet.) . . . . . . . 9-10 15-16 26

In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006)

(per curiam) (orig. proceeding) . . . . . . . . . 17-19 36

In re Pensom, 126 S.W.3d 251

(Tex. App.BSan Antonio 2003, orig. proceeding) . . . . . . . . . . . . . . . . . . . 36-38


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In the Interest of B.A.W., 209 TexApp. LEXIS 9043 (Tex. Appl-El Paso, November 24, 2009) (Cause No. 08-07-204-CV) . . . 11

In the Interest of C.P.J. and S.B.J.,129 S.W.3d 573

(Tex.App.BDallas 2003). . . . . . . . . . . . . . 18 Lilley v. Lilley, 43 S.W.3d 703

(Tex. AppBAustin 2001, no pet.) . . . . . . . . 10-11 16-17 36,38 41

Troxel v. Granville, 530 U.S. 57 (2000). . . . . . . 17 36-37 Walker v. Packer, 827 S.W.2d 833

(Tex. 1992) (orig. Proceeding). . . . . . . . . . 9 Statutes

Texas Family Code §101.032. . . . . . . . . . . . . . 16 Texas Family Code '105.001. . . . . . . . . . . . 16,44,47 Texas Family Code '153.000. . . . . . . . . . . . . . . 6 Texas Family Code '153.002. . . . . . . . . . . . . . . 15 Texas Family Code '153.010. . . . . . . . . . . . . . . 44 Texas Family Code '153.432. . . . . . . . . . . . . . . 42 Texas Family Code '153.433. . . . . . . . . . . . . 1,7-8 18-19,26 35,37 42-43 48-49 Texas Family Code '153.433(2) . . . . . . . . . . . . . 35 Texas Family Code '153.433(3) . . . . . . . . . . . 41-42 Texas Family Code §156.000 . . . . . . . . . . . . . . 42


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Texas Government Code '22.221. . . . . . . . . . . . . . 4 Rules Texas Rule of Appellate Procedure 52.4 Texas Rule of Appellate Procedure 55.1. . . . . . . . . 7


32

7


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I. STATEMENT OF THE CASE/NATURE OF THE PROCEEDING

The underlying case is a suit for grandparent access to

minor children brought by Real Party in Interest, Colonel

Mustard, pursuant to Texas Family Code '153.433. On October 12,

2009, Associate Judge Learned Hand rendered temporary orders

granting the maternal grandfather, Colonel Mustard, temporary

access to his grandchildren and appointing an expert to serve

as guardian ad litem to further evaluate what would be in the

best interest of the children and to make recommendations to

the Court regarding whether denial of access to his

grandchildren would significantly impair their physical health

or emotional development. Relator waived his right to a de novo

hearing on the record, and thus no de novo hearing was held,

and the order was ratified by the District Court. In his

request for mandamus relief, Relator is asking this Court to

issue a mandate requiring Associate Judge Hand to reverse his

ruling.

Relator originally filed a request for mandamus relief and

Motion for Stay with the Third Court of Appeals in Austin, Texas

on or about December 2, 2009. Real Party in Interest, Colonel

Mustard (hereinafter “Mustard” or “Col. Mustard”), filed his

response to the Motion for Stay on December 8, 2009, and received


34

9

an extension to file the response to the Petition for Writ of

Mandamus until December 22, 2009. Although the Third Court of

Appeals initially granted the Motion to Stay, it ultimately

dissolved the stay and denied the mandamus relief on December

23, 2009.

Subsequently, Relator filed another Petition for Writ of

Mandamus and Motion for Stay on December 28, 2009. Col. Mustard

would note that counsel for Relator had received a vacation

letter on November 25, 2009 informing her that undersigned

counsel would be out of the office and that the entire law office

would be closed between December 23, 2009 through January 4,

2010, as noted in Relator=s Motion for Stay. However, although

the office was closed, counsel for Col. Mustard did not receive

notice of the fact that a motion for stay had been filed in

addition to the petition for writ of mandamus. Undersigned

counsel for Col. Mustard did, however, receive correspondence

from this Honorable Court on December 30, 2009 in the form of

a post card that noted only a petition for writ of mandamus had

been filed (i.e., no reference to the Motion for Stay was

mentioned in the notice). No other correspondence was received

from opposing counsel via U.S. Mail, although mail was received

from the Supreme Court of Texas and was being checked throughout


35

10

the holiday. This Honorable Court granted Relator=s Motion for

Stay on January 4, 2010. As a result of not receiving any

correspondence from Relator, and as a result of same being filed

during the designated vacation and holiday office closure of

undersigned counsel, Col. Mustard was unfortunately unable to

respond to the Motion for Stay prior to the stay being granted.

Col. Mustard requests this Honorable Court to dissolve the

stay and deny the mandamus relief requested by Relator, as there

is no clear abuse of discretion in either the trial court=s

granting of temporary access or the appointment of a guardian

ad litem/expert, as Relator himself requested and agreed to the

appointment of such an expert. Further, the grandparent access

statute was not unconstitutional as applied to Relator, and

therefore mandamus should be denied.


36

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II. STATEMENT OF JURISDICTION

This Court has jurisdiction to determine Relator=s Petition

for Writ of Mandamus pursuant to Texas Government Code '22.221.


37

12

III. STATEMENT OF THE FACTS

Col. Mustard is the maternal grandfather of the children

the subject of this suit.

The children=s mother, the daughter of Colonel Mustard,

tragically passed away, on September 1, 2007(see RR page 16,

lines 9-13). The children, Bonnie Blue and Connie Sue, were

present when their mother suffered a heart attack, and Bonnie

Blue (the older child) called emergency services. (Id.) The

children were six and three years old, respectively, when this

tragedy occurred. (Id.)

Both prior to and subsequent to their mother=s untimely

death, the children visited their grandfather frequently, as

often as every four-to-six weeks during the school year, and

spent the majority of their summer vacations with him (see RR

page 19, lines 22-25; page 132, lines 14-24; page 133, lines

3-6; page 134, lines 6-24; page 139, lines 16-25; page 146, lines

20-25). Relator himself acknowledged the increasingly close

relationship the children had established with their

grandfather (see RR page 155, line 25 through page 156, lines

1-12). Unfortunately, the frequency began to decrease when

Relator became involved with another woman (see RR page 23,

lines 11-17; page 28, lines 13-22; page 99, lines 18 through


38

13

page 101, lines 1-5; page 102, lines 15-18). Ultimately, all

of Col. Mustard=s access to the children was terminated (see RR

page 33, lines 25 through page 34, lines 1-11; page 35, lines


21-25 through page 38, lines 1-9; page 39, lines 8-17; page 47,

lines 14-20; page 53, lines 14-22; page 55, lines 8-24; page

103, lines 22-25 through p. 104, lines 1-11; page 107, lines

15-25 through page 108, lines 1-8; page 189, lines 4-8).

Relator himself acknowledged that he had not allowed contact

between Col. Mustard and the children both prior to and after

the lawsuit was filed, in spite of his representations that Col.

Mustard could visit the children Aanytime in Austin@ (see RR page

189, lines 4-8). Considerable evidence of Col. Mustard=s

efforts to see the children was presented to the trial court

(Id.) However, his efforts were to no avail (see Id. above),

which resulted in the filing of a suit seeking grandparent

access under Texas Family Code Chapter 153. Col. Mustard made

repeated attempts to see the children after being told he could

Asee them any time he was in Austin,@ but he was not allowed access

(see RR page 34, lines 5-14; page 35, lines 10-13; page 36, lines



39

14

15-24; page 103, lines 22-25 through page 104, lines 1, 7-11;

page 107, lines 15-25; page 108, lines 1-8).

Within the course of a year, the children not only lost

their mother, uncle and grandmother, they lost their childhood

home since birth, and were forced to leave the school district

they had attended their entire young lives (see RR page 31, line

2 through page 32, line 19; page 34, lines 22-25; page 35, lines

1-2; page 30, lines 23-25; page 31, line 1).

Prior to this court requesting additional briefing

pursuant to Texas Rule of Appellate Procedure 55.1, Relator had

not challenged Col. Mustard=s standing to bring a suit under

Texas Family Code Section 153.433. Instead, Relator complained

merely that the trial court abused its discretion in finding

that Col. Mustard overcame the statutory presumption set forth

in Texas Family Code '153.433. However, considerable testimony

was presented regarding the tremendous loss the children

suffered and the close relationship they shared with their

grandfather, from which the court could conclude that denial

of access would significantly impair the children. Relator

further complains that the trial court abused its discretion

in appointing an expert guardian ad litem to make

recommendations to the court regarding whether denial of access


40

15

would significantly impair the children=s physical health or

emotional well-being. However, Relator specifically agreed to

the appointment of such an expert (see RR page 10, lines 17-22;

page 191, lines 22-25; page 192, lines 1-3 and 17-24; page 221,

lines 11-13). Relator himself specifically joined in the

request for such an appointment (see RR page 221, lines 11-13).

In fact, Relator requested that the appointment focus on whether

denial of access would significantly impair the children=s

physical health or emotional development, which is Mustard=s

burden of proof (see RR page 230, line 25 through page 231, line

1). As such, Col. Mustard requests that this court deny the

relief requested by Relator.

IV. RESPONSE TO ISSUES PRESENTED IN RELATOR=S PETITION Issue 1: Mandamus is not justified in this case.

Issue 2: The trial court did not abuse its discretion in granting temporary orders in this case, and did not lack jurisdiction under the holding in In re Derzaph.

(1) The trial court did not abuse its discretion in

granting temporary orders providing for grandparent access in this case.

A. Real Party in Interest, Colonel Mustard, met

the statutory burden set forth in Texas Family Code '153.433 by showing by a preponderance of the evidence that denial of access to his grandchildren would significantly impair their physical health and/or emotional well-being, thereby


41

16

overcoming the Ahigh threshold@ burden acknowledged in Derzaph.

B. Real Party in Interest, Colonel Mustard, was

not required to prove Relator Aunfit@ standing alone, but instead overcomes the Afitness@ presumption by proving by a preponderance of the evidence that denial of access would significantly impair the children=s physical health or emotional well-being.

Issue 3: The trial court did not abuse its discretion in

appointing an expert to serve as guardian ad litem, and Relator agreed to and joined in requesting said appointment, and therefore should be precluded from complaining on appeal.

V. ARGUMENT

ISSUE 1. MANDAMUS IS NOT JUSTIFIED IN THIS CASE.

Mandamus is an extraordinary remedy, available only to

correct a clear abuse of discretion when there is no other

adequate remedy by appeal. Abuse of discretion is the standard

of review for a trial court=s determination regarding

grandparent access and possession. In re J.P.C., 261 S.W.3d 334,

335-336, 338 (Tex. App.BFort Worth 2008, no pet.). AA trial court

clearly abuses its discretion if it reaches a decision so

arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.@ Walker v. Packer, 827 S.W.2d 833,

839 (Tex. 1992) (orig. proceeding). Although it is a clear

abuse of discretion for the court to misapply the law to the


42

17

facts, it is the Relator=s burden to show that the trial court

could reasonably have reached only one decision. In re

American National Insurance Company, 242 S.W.3d 831, 833-834

(Tex. App.BEl Paso 2007, orig. proceeding)(emphasis added).

Relator has wholly failed to do so.

Under the Aabuse of discretion@ standard, this Court will

determine whether the trial court abused its discretion by

granting grandparent access to Col. Mustard. [See In re B.N.S.,

247 S.W.3d 807, 808 (Tex. App.BDallas 2008, no pet.).] To make

this determination, this Court must decide whether Judge Hand

acted without reference to any guiding rules or principles, and

whether he acted arbitrarily or unreasonably. In re J.P.C., at

336. It is not an abuse of discretion when the trial court bases

its decision on conflicting evidence and some evidence supports

its decision. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998).

There also is no abuse of discretion if the trial court=s decision

is supported by sufficient, competent evidence. Lilley v.

Lilley, 43 S.W.3d 703, 705, 711-712 (Tex. AppBAustin 2001, no

pet.). Simply because a trial court may decide a matter within

its discretion in a different way than the appellate court would

in a similar circumstance does not demonstrate an abuse of

discretion. In re J.P.C., at 336. Often the trial court is


43

18

in a better position to evaluate evidence and the child=s best

interest. Lilley v. Lilley, at 705.

Recently, Justice Ann McClure of the El Paso Court of

Appeals artfully articulated the deference that should be given

the trial court in weighing and considering the evidence

presented to it when considering an appeal or other

appellate-type action, such as a mandamus. In the case of In

the Interest of B.A.W., 2009 Tex.App. LEXIS 9043 (Tex. App.BEl

Paso, November 24, 2009)(Cause No. 08-07-204-CV), Justice

McClure writes: ATrial courts are vested with broad discretion

in suits affecting the parent child relationship for one very

important reason....[Parties] are often angry, bitter,

vengeful, and hostile towards one another. Sometimes they act

in their own best interest rather than in the best interest of

[the] child. The child may become a ping pong ball in a game

of which [party] can hurt the other more, even if the child gets

hurt in the process. The trial court has the ability to gauge

[the] behavior and absorb the subtle nuances of righteous

indignation played out in the judicial spotlight. That judge

had the ability to see the fire in the eyes, hear the anger in

the voice, and feel the sincerity in the heart. We [the

appellate court] do not have that luxury.@ Id.


44

19

Judge Hand was present for a hearing that lasted the better

part of a day, and was in the best position to determine the

credibility of the witnesses, to observe the demeanor,

sincerity (and lack thereof) of the parties and witnesses, and

generally to ascertain the dynamics of the situation as it

affected these two little girls. After considering it all, and

after Relator was given a full opportunity to express his

objections, Judge Hand found that Col. Mustard had overcome the

statutory presumption by finding by a preponderance of the

evidence that denial of access would significantly impair the

children. He reiterated this finding when he ruled on the

Motion to Enter on November 12, 2010 (see Nov. 12, 2010 RR page

10, lines 4-13). Further, he was in the best position to

determine, based upon the evidence, whether or not Relator was

sincere in his representations that he would allow Col. Mustard

to have some access to his grandchildren. Based upon the

considerable evidence presented, it is not unreasonable for

Judge Hand to have concluded that Relator had refused access

in the past, and in spite of Relator=s representations, would

not likely allow visitation in the future (see e.g., RR page

36, lines 4-11; page 37, lines 21-25 through page 38, lines 1-9;

page 39, lines 8-17).


45

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In the present case, there was considerable testimony and

evidence presented that supports the trial court=s finding that

denial of access would significantly impair the children=s

physical health or emotional welfare. The tragic loss that the

children suffered in a short period of time (see RR page 16,

lines 9-13; page17, lines 17-25 through page 18, lines 1-2; page

32, lines 12-19;page 19, lines 7-21; page 34, lines 5-14; page

35, lines 10-13; page 36, lines 4-11; page 37, lines 15-25; page

38, lines 1-9; page 55, lines 15-24; page 103, lines 22-25

through page 104, lines 1, 7-11; page 107, lines 15-25; page

108, lines 1-8); the close relationship and frequent contact

the children had with Col. Mustard (see e.g. RR page 19, lines

22-25; page 132, lines 14-24; page 133, lines 3-6; page 134,


146, lines 20-25); the fact that Col. Mustard had made repeated

attempts to see the children, which were ignored and denied (see

RR page 33, line 25 through page 34; page 35, lines 3-13; page

36, lines 4-20; page 37, lines 6-25; page 38, lines 1-9;p. 39,

lines 8-17; page 55, lines 15-24; page 103, lines 22-25 through

page 104, lines 1, 7-11; page 107, lines 15-25; page 108, lines

1-8); along with substantial testimony from witnesses about the

close relationship the children had with their grandfather and


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21

how denial of same would harm the children (see RR pages

131-152); combined with the judge=s observation of the demeanor

and testimony of the witnesses, all support the judge=s finding

that denial of access would impair the children=s physical health

or emotional development. There was evidence of anger and

emotional suffering of the children (see RR page 71, line 24

through page 73, line 9), as well as physical manifestations

of emotional issues (see RR page 41, lines 6-8). Relator

himself admitted that he had not allowed Col. Mustard to have

any contact with the children even before the lawsuit was filed

(see RR page 189, lines 4-8). It does not stretch one=s

imagination to conclude that denial of access to a grandparent

with whom they had frequent and loving contact, and who was the

sole living relative from their mother=s family, would

significantly impair their physical health or emotional

development, especially in light of their loss of their mother

(which they personally witnessed), maternal uncle, maternal

grandmother, lifelong home, neighborhood friends, their

school and schoolmates, within the time frame of a year and a

half, and were thrust into a new step-parent relationship, home,

and school situation. Both Col. Mustard and his wife, Mrs.

Peacock, testified that it appeared that Relator=s new wife was


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22

attempting to remove all vestiges of the children=s mother from

their lives (see RR page 28, lines 24-25 through page 29, line

1; page 100, lines 19-24).

Furthermore, although Relator claimed that it was not his

intent to deny access to the children by Col. Mustard, the court

could have easily concluded that Relator=s testimony was not

credible, based upon the considerable testimony regarding Col.

Mustard=s attempts to see his grandchildren, all of which went

ignored and/or refused (see RR page 34, lines 5-14; page 35,




108, lines 1-8).

Accordingly, it cannot be said that the trial judge clearly

abused his discretion and that he could have reasonably made

but one decision. As such, mandamus relief is not justified.

ISSUE 2: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN GRANTING TEMPORARY ORDERS IN THIS CASE, AND DID NOT LACK JURISDICTION UNDER THE HOLDING IN DERZAPH.

In suits affecting children, the trial court=s primary

consideration is what is in the best interest of the children.

Texas Family Code '153.002; In re J.P.C., at 336. Grandparent

access suits are suits Aaffecting the parent-child


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23

relationship.@ Texas Family Code '101.032. AThe trial court

is given wide latitude in determining the best interests of a

minor child.@ Lilley v. Lilley, at 705. The determination of

a child=s best interest in a grandparent access case requires

the trial court to balance the possible benefits and detriments

to the child; and this balance necessarily involves the exercise

of judicial discretion. In re J.P.C., at 336.

Temporary orders are permitted in suits affecting

parent-child relationships. Texas Family Code '105.001. A trial

court may award temporary grandparent visitation if the

biological parent is given a meaningful opportunity to be heard

before the trial court renders an order. [See In re Chambless,

257 S.W.3d 698, 700 (Tex. 2008) (orig. proceeding).] Although

Relator argues that the court did not give deference to his

position, the evidence shows the contrary, in that he was given

an opportunity to be heard, an opportunity to present witnesses,

and an opportunity to argue against allowing grandparent

access, and what concerns he may have regarding the parameters

of those visits. The trial court, as fact finder, is permitted

to resolve any conflict in the evidence and to determine the

weight and credibility to give to the witnesses= testimony. AA


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24

fact finder=s decisions on conflicts in the evidence is generally

viewed as conclusive.@ Lilley v. Lilley, at 705.

It is apparent from the trial court=s ruling in the present

case that he considered and gave deference to the Relator=s

concerns, as similarly addressed in the Chambless case cited

above, and this court=s ruling in In re Mays-Hooper, 189 S.W.3d

777, 778 (Tex.2006), (citing Troxel v. Granville, 530 U.S. at

68-71). Although Relator argues in his brief that the court did

not follow In re Derzaph, 210 S.W.3d 327, 50 Tex. Sup.Ct.J. 563,

in considering his objections, the record shows that Relator

was permitted an opportunity to express his concerns.

Specifically, Relator testified about Col. Mustard=s alleged

failure to observe established bedtimes of the children (see

RR page 161, lines 1-23), comments allegedly made about the

children=s deceased maternal grandmother (see RR page 160, lines

7-15); discussing gifts and trips (see RR page 162, lines

16-20); and comments allegedly made about Relator=s relationship

with his new wife (see RR page 162, lines 1-15). In response

to those concerns, Judge Hand specifically imposed orders and

injunctions upon Col. Mustard regarding the children=s bedtime,

and discussion of the parties, the case, or family members (see

RR page 234 lines 1-25; page 236, lines 9-20). This is in line


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25

with the Dallas Court of Appeals ruling in In the Interest of

C.P.J. and S.B.J.,129 S.W.3d 573, 578-579 (Tex.App.BDallas

2003), wherein the court held that the award of grandparent

access was not an abuse of discretion, partly because the trial

court entered an order that took into consideration the parent=s

complaints and concerns, and did not deny the parent due

process. In the Interest of C.P.J. and S.B.J., at 578-579. Thus,

Col. Mustard would argue that the statute was not

unconstitutionally applied to Relator because the court did

take into consideration Relator=s expressed concerns, allowed

him a full opportunity to participate, and made sure to address

Relator=s concerns in the trial court order.

(1) The trial court did not abuse its discretion in granting temporary orders providing for grandparent access in this case.

A. Real Party in Interest, Colonel Mustard, met

the statutory burden set forth in Texas Family Code '153.433 by showing by a preponderance of the evidence that denial of access to his grandchildren would significantly impair their physical health and/or emotional well-being, thereby overcoming the Ahigh threshold@ burden acknowledged in Derzaph.

This Honorable Court has previously spoken to specific

issues regarding grandparent access cases in its opinions in

Mays-Hooper and in Derzaph. However, Col. Mustard would argue


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26

that the case at bar is distinguishable from the holdings of

those cases, even under the standards set forth in Derzaph and

in Mays-Hooper, Col. Mustard has met his burden under Texas

Family Code '153.433. In Derzaph, this Honorable Court held

that (1) a step-grandparent did not have standing under the

statute to seek access, and (2) the grandmother did not overcome

the presumption under the statute. In re Derzaph, at 327.

However, the present case is highly distinguishable from this

Court=s holding in Derzaph, in that: (1)specific evidence was

presented that showed denial of access would significantly

impair the physical/emotional welfare of the children; (2)

evidence of significant impairment, as opposed to mere Abest

interest@ of the children, was presented to the court, unlike

the Derzaph case; (3) specific evidence regarding the nexus

between Col. Mustard=s (as opposed to a step-grandparent=s)

denial of access would significantly impair the children; and

(4) Col. Mustard never sought conservatorship nor has his wife

(step-grandmother) ever been a party to the suit, as was the

case in Derzaph. As such, there are significant distinctions

between the facts and holding in the Derzaph case and the case

at bar, which will be described more fully below.


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First, in Derzaph, the grandmother in question, along with

her husband (the step-grandparent), initially sought

conservatorship of the children the subject of the suit, and

only after being denied same, did they seek access under the

grandparent access statute. In re Derzaph, at 329.

Additionally, both the initial suit for conservatorship and the

subsequent suit for grandparent access named both the

biological grandmother and the step-grandfather as parties.

This court held that a non-biological or non-adoptive

grandparent (i.e. step-grandparent) did not have standing to

pursue relief under the grandparent access statute. In the

present case, only Real Party in Interest, Colonel Mustard, the

biological maternal grandfather, is seeking access under the

statute. While evidence was presented regarding Col. Mustard=s

relationship with the children and frequency of contact, which

necessarily involved the children=s step-grandmother, Mrs.

Peacock, the majority of the evidence was limited to the denial

of access of Col. Mustard only (see e.g. RR page 43, lines 10-21;

page 47, lines 14-20; page 144, 11-23; page 145, lines 1-2; page

151, lines 15-25; page 152, lines 1-14). Furthermore, Mrs.

Peacock was never a party to this suit, nor did either she or

Col. Mustard ever seek conservatorship of the children.


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Secondly, this Court noted that much of the evidence in

Derzaph centered around the denial of access to the

step-grandfather and extended family (see RR page 43, lines

10-21; page 47, lines 14-20; page 144, 11-23; page 145, lines

1-2; page 151, lines 15-25; page 152, lines 1-14). In the

present case, there was considerable testimony that denial of

access by Col. Mustard alone would significantly impair the

children=s physical health or emotional development (see RR page

43, lines 10-21; page 47, lines 14-20; page 144, 11-23; page

145, lines 1-2; page 151, lines 15-25; page 152, lines 1-14).

Thirdly, and significantly, this Court held in Derzaph that

although the court-appointed expert in that case testified that

the children Awould benefit@ from contact with the grandmother,

there was no evidence that denial of access would significantly

impair the children. In re Derzaph, at 327. In fact, it was

noted in Derzaph that the expert actually testified that the

children had benefitted from decreased contact with the

grandmother due to her actions of undermining the father=s

initiatives, and that the children should first renew contact

with their step-grandfather and uncles prior to renewing

contact with the biological, maternal grandmother. [See In re

Derzaph, at 334.] (emphasis added).


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Unlike the evidence presented in Derzaph, there was

considerable evidence presented in the present case as to the

denial of access by Col. Mustard significantly impairing the

physical health or emotional development of the children. This

evidence was addressed and limited to Col. Mustard=s contact with

the children, and not their extended family generally. While

some of the testimony necessarily included Col. Mustard=s wife

due to the fact she lived with Col. Mustard and was present for

many of the visits, the specific testimony and evidence

presented from Col. Mustard=s witnesses and Col. Mustard himself

centered around how denial of access to Col. Mustard in

particular would significantly impair the children (see RR page

43, lines 11-21; page 136, lines 18-25; page 137, lines 1-3;


1-14).

Additionally, evidence was presented regarding the

physical and emotional manifestations of significant

impairment of the children. There was evidence of anger and

emotional suffering of the children (see RR page 71, line 24

through page 73, line 9), as well as physical manifestations

of emotional issues (see RR page 41, lines 6-8).


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30

Furthermore, there was testimony from at least four

witnesses that, based upon their personal observations and

experiences with the children and Col. Mustard, they believed

denial of access by Col. Mustard to his grandchildren would

significantly impair the children=s physical health or emotional

development (see RR page 43, lines 11-21; page 136, lines 18-25;

page 137, lines 1-3; page 112, lines 1-7; page 113, lines 16-18;

page 152, lines 1-14).

As the sole judge of the credibility of the witnesses and

in considering the evidence, the court could have easily

determined that denial of access to their grandfather would

significantly impair the children. There was considerable

evidence presented on the close relationship the children had

with their grandfather (see RR page 19, lines 22-25; page 132,


135, lines11-25; page 136, lines 18-25; page 137, lines 1-2;


20-25; page 151, lines 1-5), which even Relator acknowledged

(see RR page 155, line 25 through page 156, lines 1-12).

Likewise, there was the considerable amount of evidence of the

significant loss the children had suffered in their very young

lives (see RR page 31, line 2 through page 32, line 19; page


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31


31, line 1), including but not limited to the losses of: their

mother, maternal uncle and maternal grandmother; their lifelong

home; their familiar school and friends; and many of their

belongings. (Id.) This resulted in Col. Mustard being the

only remaining familial connection with their mother=s side of

the family (see RR page 19, lines 7-21). This direct evidence

from witnesses that the children would be significantly

impaired if denied access to their grandfather, the evidence

of the great loss the children had suffered, coupled with the

physical and emotional manifestations of harm testified to by

witnesses for both sides (see RR page 71, line 24 through page

73, line 9; page 41, lines 6-8) provided the basis for the court

to both infer and conclude, as the fact-finder, that denial of

access to their grandfather would result in significant

impairment to their physical health or emotional development.

Likewise, the court could reasonably and logically conclude

that, in addition to all of the other evidence presented, as

the last living relative on the children’s maternal side,

coupled with evidence of the close relationship and

questionable decisions made by Relator with regards to the


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children (see RR page 34, lines 22-25; page 35, lines 1-2), that

Col. Mustard overcame the statutory presumption.

Additionally, it should be noted that Derzaph is

distinguishable from the present case in that much of the

testimony in that case centered around the relationship between

the children and persons other than the maternal grandmother.

Furthermore, the expert in Derzaph actually testified that

contact with the grandmother would be harmful if she continued

her efforts to undermine the father=s directives. [See In re

Derzaph, at 334.] Additionally, the expert specifically

testified it was his opinion that while not healthy for the

children, he could not say that denial of access to the

grandmother specifically would significantly impair the

children. [See In re Derzaph, at 334.] In the present case,

there was direct testimony from several witnesses that such

denial would significantly impair the children, based upon

their own personal observations and experiences with Col.

Mustard and the children (see RR page 43, lines 11-21; page 136,

lines 18-25; page 137, lines 1-3; page 112, lines 1-7; page 113,

lines 16-18; page 152, lines 1-14).

In this regard, Relator asserts that testimony from

witnesses that merely tracks the statutory language is


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33

insufficient to support the court=s finding that Col. Mustard

met his statutory burden under Texas Family Code '153.433. To

that end, Relator relies upon J.P.C. for the proposition that

probative evidence is necessary to prevail, and the law requires

more than Abare, unsupported allegations.@ [See In re J.P.C.,

at 338.] However, in the present case, the record is replete

with specific instances of evidence supporting the various

witnesses= opinions that denial of access would significantly

impair the physical health or emotional well-being of the

children the subject of this suit. As stated previously, there

was considerable evidence presented on the close relationship

the children had with their grandfather (see RR page 19, lines

22-25; page 132, lines 14-24; page 133, lines 3-6; page 134,

lines 6-24; page 135, lines11-25; page 136, lines 18-25; page

137, lines 1-2; page 139, lines 16-25; page 146, lines 20-25;

page 148, lines 20-25; page 151, lines 1-5), which even Relator

acknowledged (see RR page 155, line 25 through page 156, lines

1-12). Likewise, there was the considerable amount of evidence

of the significant loss the children had suffered in their young

lives (see RR page 31, line 2 through page 32, line 19; page


31, line 1), including but not limited to the losses of: their


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34

mother, maternal uncle and maternal grandmother, their lifelong

home, their familiar school and friends, and many of their

belongings. And there was the evidence of the physical and

emotional manifestations of harm testified to by witnesses for

both sides (see RR page 71, line 24 through page 73, line 9;

page 41, lines 6-8). There was the testimony of the

observations of the interactions between the children and their

grandfather at both the funerals of their mother and their uncle

(see RR page 135, line 11 through page 137, line 2; page 150,

line 14 through page 151, line 5). There was the evidence of

the older child=s, Bonnie Blue=s, feelings of loss and anger at

losing so many loved ones (see RR page 72, line 17 through page

73, line 9). All of these together could easily form the basis

for Judge Hand= finding that denial of access would significantly

impair the physical health or emotional well-being of the

children.

It should likewise be noted that the Derzaph case had the

benefit of a court-appointed expert upon whose testimony this

court relied in finding that the expert=s opinion that renewed

contact with the grandmother, although beneficial, did not rise

to the level of showing significant impairment to the children.

[See In re Derzaph, at 327.] In fact, as previously mentioned,


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the expert testified that he could not state that the denial

of access to grandmother rose to the level of significant

emotional impairment. [See In re Derzaph, at 334.] It is

interesting to note that Relator relies heavily upon this court=s

opinion in Derzaph, and although the parties in Derzaph had the

benefit of a court-appointed expert upon whose testimony much

of this court=s opinion turned, Relator wants to also complain

that the trial court abused its discretion in appointing such

an expert in this case, even though Relator agreed to the

appointment and actually joined in the request (see RR page 10,

lines 17-22) and Relator=s own testimony (see RR page 191, line

22 through page 192, lines 1-2; page 192, lines 13-24; page 230,

line 22 through page 231, line 1). Col. Mustard would argue

that, at a minimum, the expert appointed by Judge Hand should

be allowed to complete her assessments and make a recommendation

as to whether or not denial of access would significantly impair

the physical health or emotional well-being of the children.

Relator also seems to argue that it is required that Col.

Mustard prove that Relator intended to deny all contact with

his grandchildren in order to prevail. Relator further argues

that it was not his intent to deny Col. Mustard access to the


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children under certain circumstances. Relator=s arguments fail

and are not supported by the evidence for several reasons.

Col. Mustard did not have to allege and prove that Relator

intended to completely exclude Col. Mustard=s access to his

grandchildren. However, if he was required to prove this, he

did provide the court sufficient evidence to establish that Mr.

Wilkes has excluded the grandchildren from Col. Mustard.

The grandparent access statute only requires that there be

evidence that the parent intends to deny the grandparents

possession of or access to the child. In re J.M.T., 280 S.W.3d

490, 493 (Tex. App.BEastland 2009, no pet.) The evidence shows

that Col. Mustard had not been allowed to see or contact his

grandchildren for over three months, even though he had

routinely seen them every four-to-six weeks (see RR page 19,

lines 22-25; page 36, lines 21-25).

Furthermore, Relator=s assertion that Col. Mustard

acknowledged that he could visit the children at any time as

long as his wife was not present is wholly inaccurate. The cite

in Relator=s brief alleges that AMustard acknowledged that he

is free to visit in Austin and without the presence of his wife,

Mrs. Peacock.@ However, Relator=s cite to the record is to his

own testimony, not that of Col. Mustard. Col. Mustard only


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acknowledged that Relator had, on one occasion, made that

statement (see RR page 39, lines 8-11). However, the

acknowledgment that Relator represented that Col. Mustard could

visit the children in Austin was immediately followed by Col.

Mustard=s testimony that he had attempted to make arrangements

for such visitation after Relator made the representation, but

was completely denied access (see RR page 39, lines 12-17).

Likewise, as previously set out extensively herein, Col.

Mustard stated that he had made repeated attempts to see the

children after Relator allegedly represented he could see the

children without his wife=s presence, and was wholly denied said

access, and thus did not believe Relator=s assertions (see RR



page 103, lines 22-25 through page 104, lines 1, 7-11; page 107,

lines 15-25; page 108, lines 1-8). Relator cannot rely on his

own testimony to prove that Col. Mustard has acknowledged that

he has not been completely denied visitation. Col. Mustard

himself testified extensively that was not the case, which

creates conflicting testimony. It is then up to the trial

court/fact-finder to resolve those conflicts by considering the

evidence and credibility of the witnesses in their entirety in


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making his ruling. It is not an abuse of discretion when the

trial court bases its decision on conflicting evidence and some

evidence supports its decision. In re Barber, 982 S.W.2d 364,

366 (Tex. 1998).

Therefore, if Col. Mustard was required to prove that Mr.

Wilkes intended to deny the grandchildren access to Col.

Mustard, Col. Mustard did so. The trial court, after

considering all of the evidence, weighing the credibility of

the witnesses and observing their demeanor, could have found

that Mr. Wilkes= testimony that he did not intend to deny Col.

Mustard access to the grandchildren was not credible, and the

evidence supported that Mr. Wilkes did not intend to allow

access.

In addition, there was considerable testimony presented

that since the time the lawsuit was filed, Relator had never

called and offered to allow the children to visit with Col.

Mustard; he had never initiated any telephone contact between

Col. Mustard and the children; Col. Mustard had attempted to

call Relator repeatedly to arrange visitation and Relator would

not return Col. Mustard=s telephone calls or respond in any

manner (see RR page 35, lines 1-13; page 34, lines 5-14; page



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39



108, lines 1-8).

Based upon the substantial amount of evidence presented,

the trial court could have easily concluded that Relator was

not sincere in his representations and that denial of access

had occurred and would likely occur in the future. This is

highlighted by the considerable evidence that was presented as

to Col. Mustard=s repeated efforts to contact his grandchildren,

even after Relator allegedly told him (Mustard) that he could

see the children in Austin outside the presence of the

step-grandmother (see RR page 33, line 25 through page 34; page


38, lines 1-9;page 39, lines 8-17; page 47, lines 4-20; page



108, lines 1-8; page 153, lines 9-17). Relator represented at

trial that he would allow Col. Mustard access as long as

step-grandmother was not present. On the contrary, in spite

of Relator=s claims that Col. Mustard could see the children when

he wanted to if his wife were not present, there is substantial

evidence that Col. Mustard=s repeated efforts to see the children


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went ignored or refused (see RR page 34, lines 5-14; page 35,




108, lines 1-8). As the sole judge of the credibility of the

witnesses, their demeanor, the dynamics in the courtroom, and

in consideration of the evidence taken as a whole, the trial

court could reasonably infer and conclude that Relator had

denied and would continue to deny Col. Mustard access to his

grandchildren unless a court order was entered.

Relator also argues that the evidence was insufficient to

support the trial court=s ruling because the witnesses merely

Atracked the language of the statute.@ For the many reasons and

cites to the record noted herein, Col. Mustard would disagree,

as specific evidence was presented from which the court could

have concluded that denial of access would significantly impair

the children. However, it is interesting to note that Relator

seems to again rely heavily upon certain language in the Derzaph

opinion which was largely based upon the fact that the

court-appointed expert did not testify that denial of access

would significantly impair the children, but then criticizes

Col. Mustard=s evidence for making sure the statutory language


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was followed. Relator cannot have his cake and eat it, too.

Col. Mustard=s witnesses all testified that they believed, based

upon their observations, the children would be significantly

impaired if denied access to their grandfather, and supported

that testimony by many specific examples of why they thought

that was true (see prior references herein). It seems

inherently contradictory for Relator to argue that there was

no evidence presented of significant impairment, and then

censure the evidence for stating the language of the statute

and presenting evidence that specifically complies with the

opinion in Derzaph. While a mere parroting of the statute may

not reach the necessary burden, the statements, based upon the

witnesses= personal observations and experiences to form their

opinions certainly provide evidence of the statutory burden

which the trial court found was Aoverwhelmingly@ met (see Nov.

12, 2010 RR page 10, lines 4-13).


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B. Real Party in Interest, Colonel Mustard, was not required to prove Relator Aunfit@ standing alone, but instead overcomes the Afitness@ presumption by proving by a preponderance of the evidence that denial of access would significantly impair the children=s physical health or emotional well-being.

Under the statute at issue here, Col. Mustard is not

required to prove that Relator is Aunfit@ standing alone. This

is because the statute itself defines Aunfitness@ for purposes

of grandparent access suits under Texas Family Code §153.433.

The Texas statute at issue states:

[the] grandparent seeking access overcomes the presumption that a fit parent acts in the best interest of his child if it is shown by a preponderance of the evidence that denial of access would significantly impair the child=s physical health or emotional well-being.

[Texas Family Code '153.433(2)]. Thus, if there is sufficient

evidence presented to the court that the children=s physical

health or emotional well-being will be significantly impaired

by denial of access to the grandparent, then the presumption

is overcome by virtue of that evidence itself. By proving by

a preponderance of the evidence that denial of access would

significantly impair the children, then that evidence is what

overcomes the Afitness@ presumption. No other finding or

definition of Aunfitness@ is required to be proven separate and

apart from showing that the denial of grandparent access would


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significantly impair the physical health or emotional welfare

of the children, because the statute itself defines what is

Aunfit@ for purposes of grandparent access cases. That showing

alone is sufficient to overcome the presumption as worded in

the statute.

Relator=s reliance on Troxel v. Granville and In re

Mays-Hooper is misplaced. Both of these cases dealt with

statutes in existence prior to the amended 2005 Texas statute,

which is the applicable statute in the instant case. In

addition, the statute in Troxel v. Granville from Washington

State was Abreathtakingly broad.@ [See In re Pensom, 126 S.W.3d

251, 255 (Tex. App.BSan Antonio 2003, orig. proceeding); Lilley

v. Lilley, 43 S.W.3d at 703, 711.] This Court in Mays-Hooper

acknowledged that the Texas statute was amended on May 27, 2005,

and was not the statute at issue in that case. The statute in

existence when Mays-Hooper was decided did not include the

presumption that a fit parent acts in the best interest of his

child, nor did it include the definition or burden of proof of

how to overcome that presumption (which is by showing that

denial of access would significantly impair the physical health

and/or emotional welfare of the children). As such, these cases


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do not apply to and/or are distinguishable from the present case

and present Texas statute.

Texas Family Code '153.433, amended in 2005 and applicable

in the instant case, is consistent with the guidance provided

by the San Antonio Court of Appeals in its 2003 opinion in

Pensom. That appellate court held that the former Texas

grandparent access statute was constitutional, but also had to

be read in light of the limitations imposed by Troxel v.

Granville. The Court held:

AIn order to avoid an unconstitutional application of the statute, a court must require a grandparent to Aovercome the presumption that a fit parent acts in the best interest of his or her child.@

In re Pensom, at 256.

In 2005, the Texas legislature amended the Texas

grandparent access statute consistent with the analysis found

in Pensom, as well as the limitations found in the Troxel v.

Granville decision, and defined Aunfitness,@ for purposes of

grandparent access, as a showing by a preponderance of the

evidence that denial of access would significantly impair the

physical health or emotional well-being of the children.

Texas courts have long recognized that there are instances

where it is appropriate to grant grandparents access to


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grandchildren. Dolman v. Dolman, 586 S.W.2d 606 (Tex. Civ.

App.BAustin 1979, writ dism=d). These grandparent provisions

evidence the Legislature=s recognition that cessation of contact

with a grandparent may have a dramatic, and even traumatic,

effect upon the child=s well-being. In re Pensom, 126 S.W.3d at

255. The State has a compelling interest in providing a forum

for grandparents having a significant existing relationship to

petition for access to their grandchildren. In re Pensom, 126

S.W.3d 251, 255 (Tex. App.BSan Antonio 2003, orig. proceeding);

Lilley v. Lilley, 43 S.W.3d at 712. A statute allowing

grandparent access only under particular circumstances, and

provided it is in the grandchild=s best interest, does not

violate a parent=s rights. [See Lilley v. Lilley, 43 S.W.3d at

711.]

There was likewise substantial evidence presented that the

children=s physical health or emotional development would be

significantly impaired if Col. Mustard were denied access to

the children. The heartbreaking loss that the children

suffered in a short period of time (see RR page 34, lines 5-14;


page 38, lines 1-9; page 55, lines 15-24; page 103, lines 22-25



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108, lines 1-8; page 16, lines 9-13); the close relationship

and frequent contact the children had with Col. Mustard (see

e.g. RR page 19, lines 22-25); the fact that Col. Mustard had

made repeated attempts to see the children which were ignored

and denied (see RR page 34, lines 5-14; page 35, lines 10-13;


page 55, lines 15-24; page 103, lines 22-25 through page 104,

lines 1, 7-11; page 107, lines 15-25; page 108, lines 1-8), along

with substantial testimony from witnesses about the close

relationship the children had with their grandfather and how

denial of same would harm the children (see RR pages 131-152),

along with the judge=s observation of the demeanor and testimony

of the witnesses, all support the judge=s finding that denial

of access would impair the children=s physical health or

emotional development.

Sufficient evidence was presented to the trial court to

overcome the statutory burden. In the October 12, 2009 temporary

orders hearing, at least five witnesses testified that denying

Col. Mustard access to his grandchildren would significantly

impair the children=s physical health or emotional well-being.

Colonel Mustard testified about the child, Connie Sue,

beginning to wet the bed (see RR page 41, lines 6-8), and his


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concern about the emotional impact on his granddaughters if they

are not allowed contact with him (see RR page 41, lines 14-25;

page 43, lines 12-21; page 47, lines 14-20). Mrs. Peacock, wife

of Colonel Mustard, testified that if the children were not

allowed to visit with their grandfather as they traditionally

have, this would impair the children=s emotional or physical

well-being (see RR page 112, lines 1-11; page 113, lines 10-18).

Miss White, who knows the children from the vacation bible

school the children attend and their frequent visits to see

their grandfather, testified that the children=s emotional

well-being would be impaired if they were not permitted time

with their grandfather, based upon her own personal

observations (see RR page 136, lines 18-22). Professor Plum,

who has known Col. Mustard for 20 years (see RR page 139, lines

7-8), testified that he has known the Mustard grandchildren

since they were born, and has seen them regularly over holidays,

in the spring, and during summers (see RR page 40, lines 4-13).

He also testified that it would be emotionally harmful to the

children to be denied time with their grandfather (see RR page

144, lines 11-23). The Reverend John Doe, minister of First

United Methodist Church in Mayberry, Texas, testified that he

knew the children from church and vacation bible school, and


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that he attended the funeral of the children=s mother (Col.

Mustard=s daughter) (see RR pages 150-151, lines 18-5). He

testified that denying the children access to their grandfather

would significantly impair the children=s emotional well-being,

based upon his personal knowledge and experience (see RR page

151, lines 15-25; page 152, lines 12-14).

Judge Hand specifically held that, after considering all

of the evidence in its entirety, the presumption was

Aoverwhelmingly overcome@ and the burden had been met Abeyond a

reasonable doubt.@ (See Exhibit B to Mr. Wilkes= Petition for

Writ of Mandamus; see also Judge Hand=s comments on the record

from the Motion to Enter hearing, Nov. 12, 2010 record, RR p.

10, lines 4-13). Again, the trial court, as fact finder, is

permitted to resolve any conflict in the evidence and to

determine the weight and credibility to give to the witnesses=

testimony. AA fact finder=s decisions on conflicts in the

evidence is generally viewed as conclusive.@ Lilley v. Lilley,

at 703, 705.

Relator also argues that Col. Mustard lacked standing

because the statutory provision of Texas Family Code '153.433(3)

was unconstitutional as applied to Relator. This argument is

without merit for several reasons.


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First, the chapter that determines standing in grandparent

access suits is not Texas Family Code '153.433(3), but instead

is determined by Texas Family Code '153.432, which states in

relevant part:

(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing: (1)an original suit; or (2) a suit for modification as provided by Chapter 156.

(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.

Thus, the only requisite for standing to file a suit under

Texas Family Code '153.433 is to be a biological or adoptive

grandparent of the children the subject of the suit. It is

undisputed that Col. Mustard is the biological, maternal

grandfather of the children and, thus, had standing to seek

access.

Further, although going to the burden of proof, Col.

Mustard also met the requirements of Texas Family Code

'153.433(3), in that it was undisputed that he is Athe parent

of a parent of the child, and that parent of the child:....(C)

is dead...@ It is difficult, then, to ascertain how this

particular provision of Texas Family Code '153.433 is

unconstitutional as applied to Relator.


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Additionally, it should be pointed out that Col. Mustard=s

standing to seek access was never raised by Relator at either

the trial court, Court of Appeals, or in their initial request

for mandamus filed with this court in December 2009. As such,

that objection is waived.

Relator also argues that because Relator has attempted to

raise a constitutional objection to the statute as applied, the

correct standard of review is a de novo review. While a

mandamus is reviewed de novo, the review is still conducted in

light of whether or not the trial court abused its discretion.

The >abuse of discretion= standard is precisely the review used

by this Honorable Court in the Derzaph case, which was also a

petition for writ of mandamus.

Relator further argues that Col. Mustard=s suit for

grandparent access should fail because he did not specifically

allege in his pleadings that Relator was Aunfit.@ This argument

is incorrect. Col. Mustard specifically alleged that denial

of grandparent access would significantly impair the physical

health or emotional development of the children. (See Original

Petition for Grandparent Access, Appendix C to Relator=s brief).

Inherent in that allegation is, by definition, an allegation

that overcomes the parental presumption as defined by the


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statute itself. Col. Mustard=s burden of proof under the

statute is to overcome the presumption that a fit parent acts

in the best interest of the child by showing that denial of

access would significantly impair the child. By alleging, and

subsequently proving such, Col. Mustard meets the statutory

requirements. It is not necessary from a form or pleading

perspective to specifically allege that Relator is Aunfit,@

first, because the statute does not require it, and second,

because by definition of the allegation in the statute, the

presumption is overcome, as previously set forth herein.

ISSUE 3. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN APPOINTING AN EXPERT TO EVALUATE THE PARTIES AND TO MAKE RECOMMENDATIONS TO THE COURT.

If a court finds at the time of a hearing that the parties

have a history of conflict in resolving issues related to access

to a child, the court may order a party to participate in

counseling. See Texas Family Code '153.010. Further, a court

may, at any time prior to a final order, enter temporary orders

that are in the best interest of the child. See Texas Family

Code '105.001.

Significantly, Relator agreed to the appointment of an

expert in this case, both by his attorney=s representation at

trial (see RR page 10, lines 17-22) and Relator=s own testimony


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(see RR page 191, line 22 through page 192, lines 1-2; page 192,

lines 13-24). At the conclusion of the hearing, Relator

himself even requested the appointment of a neutral expert to

make recommendations to the court regarding whether denial of

access to Col. Mustard would significantly impair the physical

health or emotional well-being of the children (see RR page 221,

lines 11-13; page 230, line 25 through page 231, line 1).

Further, Relator specifically requested that the appointed

expert be directed to focus on whether denial of grandparent

access would significantly impair the children (see RR page 230,

line 25 through page 231, line 1). To now come forward and

complain via mandamus or appeal about the very appointment he

agreed to and requested, is inappropriate, and is likely waived.

Accordingly, Relator=s complaint regarding the appointment of

the guardian ad litem/expert should be denied.

The Real Party at Interest, Colonel Mustard, would also

argue that, just as the parties in Derzaph were afforded the

benefit of an expert to make a recommendation to the court as

to the statutory presumption, and whether denial of access would

significantly impair the children, so too should Col. Mustard,

not to mention the children, be afforded the same opportunity

to allow the court-appointed expert to complete her


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investigations and evaluations and make her recommendations to

the court. This is especially true in light of the fact that

Relator not only agreed to the appointment of the expert at

trial, but joined in the request for the appointment of same.

Col. Mustard would argue that, at a minimum, the expert

appointed by Judge Hand should be allowed to complete her

assessments and make a recommendation as to whether or not

denial of access would significantly impair the physical health

or emotional well-being of the children. Thus, even if this

Court is inclined to continue the previously issued stay, or

is inclined to issue partial mandamus relief regarding

court-ordered access, Col. Mustard would request that this

Court deny mandamus relief as to the appointment of the expert

and the conduct of her evaluation.

Col. Mustard would further assert that Relator cannot

sustain an argument that the statute as applied to him is

unconstitutional as pertains to the appointment of the expert

when he joined in the request for same. Relator attempts to

argue that he was Aconfused@ about the purpose of the appointment

(see RR page 191, lines 19-21). However, this argument is

wholly without merit, because shortly after making the

statement regarding his confusion, he unequivocally stated he


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was not opposed to the appointment of such an expert (see RR

page 192, lines 13-24). His initial confusion regarding the

appointment of an expert was apparently linked to his belief

that Col. Mustard was seeking a psychological examination of

the parties (see RR page 228, lines 16-18). However, Relator=s

unequivocal statement that he did not object to the appointment

of an expert, coupled with his request that the expert

specifically be charged with evaluating the parties and

children and making a recommendation as to whether the statutory

burden was met, wholly defeats his argument that the statute

was somehow unconstitutionally applied to him.

Relator also alleges that there was no evidence that the

appointment of an expert under Texas Family Code '105.001 was

necessary to protect the safety and welfare of the children.

Relator argues that the trial court=s order simply stated that

the purpose of the appointment was to Aevaluate [the parties]

and to make recommendations ...as to whether the denial of

access would significantly impair their [the children=s]

physical health or emotional well-being.@ However, it seems

clear that any appointment of an expert to make a determination

and recommendation as to whether denial of access would

significantly impair a child physically or emotionally would


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necessarily include issues related to the protection of their

safety and welfare. Thus, Relator=s argument does not stand.

VI. CONCLUSION

Contrary to Relator=s assertions, this is not a case about

controlB it is a case of deep sadness, pain, and the significant

loss the children in this case will suffer if the trial court=s

ruling is not upheld. Although Relator argues that Col.

Mustard=s access to the children was limited prior to their

mother=s untimely death, the evidence is significant to the

contrary.

Mandamus is not justified in this case because Col. Mustard

presented sufficient evidence to the trial court to overcome

the statutory presumption of Texas Family Code '153.433. He and

the other witnesses presented substantial testimony about the

close and special bond he has with his grandchildren, the

significant losses they suffered in a short period of time, the

facts that the witnesses believed supported their concerns that

denial of access would significantly impair the children, and

the denial of access by Relator that led to the pursuit of court

intervention. The trial court painstakingly considered all of

the evidence, the demeanor of the parties and their credibility,

and concluded that denial of access by their grandfather would


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significantly impair their physical health and emotional

development. The court further gave deference to Relator=s

expressed concerns (as addressed in both Derzaph and the C.P.J

and S.B.J. cases) by fashioning an order that incorporated those

concerns, including but not limited to established bedtimes,

conversations regarding family members, and discussions of

gifts or future travel plans.

Also contrary to Relator=s argument, Col. Mustard was not

required to show that Relator was an Aunfit parent@ per se,

because the presumption of fitness is overcome by the definition

and burden of proof set forth in Texas Family Code '153.433.

Thus, by proving by a preponderance of the evidence that denial

of grandparent access would significantly impair the children,

the fitness presumption was overcome. There is no requirement

that Col. Mustard make a separate showing of Aunfitness@ because

it is incorporated into the definition of the statute.


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Finally, the trial court was well within its authority to

appoint an expert to evaluate the situation and make a

recommendation as to whether denial of grandparent access would

significantly impair the children. In fact, Relator himself

agreed and joined in the request, specifically asking the court

to direct that the focus of the expert be on the statutory burden.

To now request this Honorable Court to issue a mandamus finding

the trial court abused its discretion in granting relief which was

agreed to and requested by Relator is improper. Accordingly, Real

Party in Interest, Colonel Mustard, respectfully asks this Court

to find that the trial court did not abuse its discretion in

granting access and appointing an expert, and thus mandamus relief

should be denied.


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Prayer

Wherefore, Real Party in Interest, Colonel Mustard prays that

this Court DISSOLVE the stay currently in place and DENY Relator=s

Petition for Writ of Mandamus.

Respectfully submitted,

AUSLEY, ALGERT, ROBERTSON & FLORES, LLP 3307 Northland Drive, Suite 420 Austin, Texas 78731 Tel: (512) 454-8791 Fax: (512) 454-9091

By: ___________________________

JoAl Cannon Sheridan State Bar No. 00783784

Attorneys for Colonel Mustard


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy

of the foregoing document will be hand delivered to the Honorable Learned Hand, Associate Judge for the 1st Judicial District Court, Travis County Courthouse, 1000 Guadalupe, Third Floor, Judge=s Office, Austin, Texas 78701; and to Mr. Hamilton Burger, 123 Congress Avenue, Austin, Texas 78701 by certified mail and hand delivery, on the day of March, 2010, in accordance with the Texas Rules of Appellate Procedure.

______________________________ JoAl Cannon Sheridan

CERTIFICATE OF CONFERENCE

On March , 2010, a member of my staff called the office of Mr. Hamilton Burger and advised her office regarding the filing of this Response to Petition for Writ of Mandamus.

______________________________ JoAl Cannon Sheridan


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GRANDPA WAS A ROLLING STONE B …CHAPTER 1 JoAl Cannon Sheridan Ausley, Algert, Robertson and...

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