Jimmy Evans | Understanding Standing in Nonparent Custody Litigation

Most attorneys make this crucial mistake about C.J.C…

They believe it’s a standing case—but it’s not.

In this episode, we’ll cover why attorneys have that misconception and explore the ins and outs of standing in family law cases.

Here to join me is Jimmy Evans of Evans Family Law Group. Jimmy has been practicing law in Texas since 1995, has been board certified in family law since 2010, and has handled 14 jury trials in family law.

Jimmy and I will share our knowledge on this subject and help attorneys gain clarity on how standing applies in family law cases.

Mentioned in this episode:


Jimmy Evans: For our listeners, it’s really, really important to remember on this issue for standing when you’re dealing with non parent and parent, I mean really anyway, but specifically for non parent and parent litigation, you’ve got to make sure you’re thinking about properly preserving that objection on standing.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Jimmy Evans to the Texas Family Law Insiders podcast. Jimmy has been practicing law in Texas since 1995, and has been board certified in family law since 2010. He handles a full range of family law cases, including divorce, child custody litigation, collaborative law and grandparents rights. Jimmy has been named a Super Lawyer every year since 2015. He’s handled over 100 jury trials in his years of practice and currently practices in the Austin area. Why don’t you tell us a little bit about your background?

Jimmy: Well, Holly, thank you for having me as a guest. And so I’m a Texas native born and raised in Fort Worth, Texas and initially, ultimately graduated from a small school Austin College up in Sherman, Texas. Found my way to the Tarrant County District Attorney’s office as an intern and graduated from then Texas Wesleyan School of Law, which is now Texas A&M School of Law.

And began my career as a prosecutor at Tarrant County District Attorney’s office. Spent about five years there. We have lots of war stories I could share with you from that. But that’s not today. Ended up finding my way to Austin, and ultimately started finding my way into family law after founding a bilingual Spanish practice serving the Spanish community here in Texas or in the Austin area, which ultimately translated into me becoming board certified and using that experience to start my practice now, which is known as Evans Family Law Group.

So I’ve been board certified since 2010. And ultimately was fortunate enough to sit on the statewide council that creates the board certification exam and writes the exam and grades it. And that was a really awesome experience. In light of some of the things we’re talking about today, I was able to, and fortunate enough to write two of the SAPCR questions in the previous three years.

So that was interesting, including one on the topic of today in re CJC. And so with all of that, that’s my background. I’ve done all those jury trials 14 now in family law. And so I’m a trial litigator in family law. And that’s primarily what we do 24/7. Divorce, custody, and family law related issues.

Holly: It’s interesting to me that you’ve done 14 family law jury trials, because I’ve been doing family law since 2008 and I have had exactly zero jury trials. You just don’t see them come up a lot. I think there have been a handful of cases where it was a legitimate possibility. But you know, why do you think you’ve had so many? As far as family lawyers go, I think that’s a lot.

Jimmy: Yeah. Well, the truth is the first five of those were when I was trying to get started here in Travis County, and I did those with CPS type cases. You know, I was on the appointment list. And frankly, at that time, the whole council for attorneys to represent parents was getting started. And there really weren’t any attorneys at that time that had jury experience. And so they were looking for a family law attorney or just somebody with that kind of experience that would actually take those to jury and represent those parents.

And I raised my hand and was glad to do it. So those were my first five. After that, honestly, the next two came because I was trying to get board certified, and I had to have three jury trials within that time frame. And I volunteered to help people with their fees, if they would just let me do their case. I mean, that’s the honest answer. And got my last family law jury trial with John McMaster in Williamson County to qualify to sit for the board certification exam.

So it was specifically for that. After that, the others have come just being hired and retained, you know, to do them. One in common law. I’ve done a jury trial for common law marriage disputes. I’ve done a couple of private termination cases. So you know, just as those opportunities have come.

Holly: Our main topic today is going to be standing and I think that’s one of the key points of law that a lot of attorneys get wrong, is thinking that CJC is a standing case because it is not. So in CJC, a little known fact, maybe it’s not a little known fact. But that was actually our second mandamus in that case. And the first mandamus was in re Clay out of the Second District Court of Appeals, and that case dealt with standing. In that one, the case started out with two sets of non parents.

We had grandparents, and we have the fiance. And fiance was the subject of CJC. So in our first mandamus, in re Clay, we were successfully able to kick out the grandparents on standing. But we were not successfully able to kick out the fiancee on standing. So let’s start out kind of backtracking just a little bit from that. Can you explain what standing is for anyone who might not know?

Jimmy: Yeah, let me, on that question. I have my old man glasses here to read if we’re on camera. Sorry about that. But in a case that you and I were talking about this morning in re JOL and ICL Children, here the court talks about standing being that the Texas Family Code defines who has standing in SAPCRs, right. And that’s what you’re talking about, because there’s various ways and forms of the ability to meet standing. And that statute guides the evidence that must be presented.

And then the court says standing is simply the right to be heard. It does not determine who will prevail on the merit. But essentially standing is you know, the idea, legally whether or not a party has in their own legal capacity, the ability to seek relief. It’s not the ultimate issue of whether or not they will win on their ultimate ask or what we call relief that they’ll obtain that from the court. In a baseball analogy, it simply gets you onto the field.

It doesn’t allow you to play the game, it just gets you into the stadium and onto the field. It’s often misunderstood, because I think a lot of family law practitioners, especially new ones, take it for granted when they file one of these original petitions. They just go grab this language, you know, standard kind of language in their form sets or whatever, and they don’t really think about it.

And they file it and thinking it’s just taken for granted to be honest with you. That’s what I see in my practice. And then all of a sudden, you run into somebody like Holly Draper who knows how to contest that. And you’re having a hearing contesting standing. And so but that’s really the answer to the question. Standing is just whether or not you have the legal right to seek relief from the court and file a petition of some sort to ask to have that relief from the court.

Holly: And another important fact about standing is that it is jurisdictional. So if the court does not have standing over a particular party, or that party doesn’t have standing, any order that the court issues is going to be void. So attorneys should really be paying attention to the issue of standing. In cases, you know, divorce or SAPCR between mom and dad, it’s really obvious that everybody has standing. I think where it comes into play a lot more and becomes a much more nuanced issue is when we’re talking about non parent standing.

So that’s where we’re really gonna focus our discussion today. Sort of the precursor to dealing with CJC type issues is, is there standing? If you have a parent or non parent come into your office, and you know, and present you with a fact pattern of their case. The very first question you should be asking if there is a non parent involved is does this person have standing. So, talk to us a little bit about some of the different statutes under which a non parent could possibly have standing.

Jimmy: There’s all kinds of different standing. The most common are like step parent kind of standing for people who argue that they’ve had care, custody, and control for six months or more preceding the filing or intervention or intervention in a SAPCR or custody suit. There’s standing for what’s called significant harm.

That’s another very commonly sought, especially like for grandparents or third parties, where a child’s emotional or physical development or may be subjected to significant harm, if that standing is not granted. Or in the reverse if that person’s access to the child is removed kind of a thing. And even from there, there’s any number of different forms of standing under the Family Code.

Holly: So really our standing is gonna fall under one of two statutes. It’s either gonna fall under 102.003, or it’s gonna fall under 102.004 if we’re talking about a non parent custody case. So under 102.003, the two that I have dealt with the most would be 102.003a9, which is the actual care, control and possession for at least six months preceding the filing of the suit.

Now, you mentioned step parent in the context of that. There’s actually a different statute that we refer to as a step parent statute, which would be 102.003a11. Those are the two standing statutes that were used in CJC for the fiancee. He was not a step parent, it does not require you to actually be a step parent, we just call it the step parent statute.

Under 102.003a11. That one specifically requires someone to have lived in the home, primary home, with a parent and the child for more than six months, and the parent has died. So with respect to 102.003a9, I think this is the most commonly litigated standing statute for non parents. Talk to us a little bit about what that statute requires.

Jimmy: Well that statute, you know, states that 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, would theoretically have standing in order to file either intervention or an original suit for some kind of managing or conservatorship arrangement. It’s an intensive fact question.

It’s intensively fact, you know, whether or not the courts are going to grant that. And all of those terms are important, because there’s a lot of different cases interpreting, quote, actual care. And what that means. And it’s it that can be a factual dispute. What the term control actually means, what the term possession of the child and what that actually means. And there’s a lot of cases out there that interpret each one of those three different elements, sometimes in the same set of facts.

And sometimes in the same case. Sometimes it’s just one of those particular elements. And it’s important to understand, at least in my opinion, in that statute, it’s an and. It’s not an or. It’s actual care, control, and possession of the child for at least six months. And so that’s an important and essential ingredient, if you will, in order to meet that standing requirement under a9.

Holly: So when you talk about that way, it sounds like this should be a high, relatively high burden to me. But as you and I were talking offline, I think we both agree that this is actually not a particularly difficult hurdle for a non parent to overcome. The Texas Supreme Court gave us the cage case of HS back a few years ago. And that’s sort of the benchmark for discussing 102.003a9. But that particular case, the grandparents were really, truly the primary caretakers of the children for a long period of time.

But the opinion in HS, I think, has been used in subsequent cases, to really water down that burden. And to really water down what is required to show this. For example, in in re Clay, which as I mentioned before, was the predecessor mandamus to CJC, we had a situation where the fiancee was living in the home with mom in the primary, quote, primary home with mom and the child. And he was not a primary caretaker. He was just there helping out.

The types of facts that they, you know, raised for why he had sanding was that he’d sometimes get up in the middle of the night with the child, he took her to the doctor one time. He would make her chocolate milk in the morning. I mean, these are very ancillary things that anybody living in the home would do, just because they’re a decent person and helping. It’s not being a primary caretaker.

The other interesting thing from in re Clay, I tried to argue in our mandamus, that the collective total of time should be at least six months that this person was living in the primary home, because there, it was the primary residence. The evidence was that he was in the primary home with the child 54% of the time, over 10 or 11 months. And everyone agreed, if you added up all the time, he was living in the home with the child, it did not equal six months.

And the Ft. Worth Court of Appeals rejected that argument and said basically, if it’s the primary home and the calendar says six months have passed, you’re gonna get in the door. So you know, if I’m representing a non parent, I’m gonna quote in re Clay all day long, because anybody who was living in that primary residence is gonna get in the door, basically.

Jimmy: Yeah, and it’s a fact question. And the courts don’t necessarily require that time to be consecutive, as we all know. It doesn’t have to be time specific. I mean, and I think you’re right, I think as long as that window is open for that six months, in re HS basically gives us the three requirements that the courts look at for that fact inquiry. And that’s whether or not the non parent was playing a quote parent like role by one of the three following things.

One, sharing a principal residence with the child. Two, providing for the child’s daily physical and psychological needs. And three, exercising guidance, governance and direction similar to that typically exercised on a day to day basis by parents with the children. And there is, quote, no requirement that the non parents care and control be exclusive.

And so as long as the parties asserting standing can adequately raise a fact question about those three things, and even if the evidence is quote, thin, because this case that you and I were talking about offline, in re BAB, that’s exactly what the court states is, quote, even though the available proof was thin, we find sufficient evidence and reasonable inferences, ultimately that supported the standing for the non parents in that particular case.

Holly: So I have read BAB I’ve cited in many of my appellate briefs with that deal with the issue of standing. Been a while since I looked at it, and I’m sure others listening are not familiar. So can you tell us generally what that case was about and how it dealt with standing?

Jimmy: Yeah. So this is a case similar to what you were talking about under a11. But actual care, custody and control. But the mother had become deceased, and this was a contested case between the father of the child and the maternal grandparents. And ultimately, what happened is the court sites in re HS, and those standards in those fact questions that you and I just talked about. And they were fact questions because the dad was in the picture.

While the mom was living with her parents, they had this loose agreement for the mom to have possession of the child for say, like Friday night to Saturday or something. Short periods of time, because the mom was struggling with sobriety. The case doesn’t go into a lot of details other than that. And so no question the grandparents, in many ways were providing those actual daily caretaking functions.

What’s interesting, ultimately, is the court comments how the grandparents failed to produce that evidence, specifically. But the dad was in the picture was exercising visitation, had weekends, at some points in time, would have additional periods of time, like weeks or a couple of weeks here and there. And so, you know, they ended up having the case ultimately is decided first on the grounds of standing, because that was the first contested issue.

And then subsequently, whether or not they had overcome the fit parent presumption to be appointed as a non parent joint managing conservator over the presumption of a fit parent against the dad. And so we can talk about that if you want to. But that’s essentially what the fact pattern was.

Holly: So it sounds like that one was sort of similar to in re Clay in that these people had a relatively easy time showing sanding under 102.003a9. Is that right?

Jimmy: Yes.

Holly: So moral of the story on 102.003a9 is if you’re representing a non parent, and you think that they can make legitimate arguments under this provision of the code, you’re probably going to be in pretty good shape, because the burden is not particularly high. Similarly, 102.003a11, which is what is referred to as a step parent statute, although it doesn’t require you to have been a step parent.

This one is even easier if you had a parent that died. That’s the one prong that you know, obviously, we’re not going to be able to manufacture. It either happened or didn’t. But if anybody who was living in the primary home with a parent and a child and that parent has died, is going to get in the door on standing.

They don’t have to prove anything else. I actually thought, you know, before CJC came to be when we were going through that case, I thought this was going to be where our case went. Was the constitutionality of this statute, because it has no protections at all, to protect the parental rights of the other parent. But that didn’t, didn’t happen. And the statute is still there as a really easy way in the door for standing if a parent has died.

Jimmy: Yeah, that’s an interesting question, because that’s what we talked about in the beginning of this. Standing is not related really to the ultimate issue. And so when you make that comment about there’s no protections there about the parent’s rights in the standing statute, just as the words are written right, in the beginning of a case, that parental fitness is not really a defense, right?

I mean, it’s not really, you can’t really, or you can try and see what a judge might do. But the way I understand the way the law reads and they interrelate to each other, that’s not a ground to bring to like to dismiss the suit. Because in the standing statute, for example, it doesn’t recognize or they haven’t overcome that parental presumption of fitness. That’s an ultimate issue to be decided at a final trial.

I think some litigators or some creative family law attorneys out there probably should start trying to do that either through summary judgment, or just some procedural motion to dismiss and just try it. Because there’s not any cases that I can see where that has been done. And where the trial court seems to have addressed that. It does seem right now that the pathway is that that’s an ultimate issue, which unfortunately, we all know what that means.

A case could be pending for a year. You have nonparent, conservators who meet the standing requirement, even if it’s razor thin, but the facts support it. And if they’re appointed as joint managing conservators, non parent, with a parent, then they’re in the life of that kiddo, of a 3, 4, 5, 6, 7 year old kiddo.

And for that whole year of time, I mean, that’s, that’s a long time. And things change. And of course, that can affect that child developmentally, emotionally, and all kinds of ways where the legislature, the courts probably should address that and give that mechanism to address that early on.

Holly: So early on, right now under 102.003a9 or 102.003a11, there’s absolutely not any protection for the fit parent presumption in protecting parental rights. Where parents need to raise the issue is if there’s a temporary orders hearing. That’s where you can cut it out at the beginning.

And even if your case is going to last a year, they shouldn’t be getting any rights, right, then unless they can overcome that presumption. And when you’re representing a parent, you do not want to let them agree to get, let the other people in the door, because once you let them in the door, their case is gonna get better and better and better.

Jimmy: Yeah, that’s a good point to raise for family law attorneys that may be listening to this particular podcast, because sometimes it makes sense, you know, to agree to something and as you’re negotiating, your people want to do what they think are the right thing. But in this new era of post in re CJC, if you agree to that, you’re potentially waiving that down the road. And it’s a risk. I don’t know, and you, and I have debated this before, because we’re working together on a case.

And whether or not someone agrees to the appointment of a non parent in temporary orders, if that has an effect on the ultimate issue of whether or not that has an impact on addressing that parental fitness presumption. Meaning, does that parent in some way waive or lessen the burden by them having agreed themselves to appoint the non parent as a joint conservator or sole managing conservator? That question hasn’t really been addressed.

Holly: You know, that’s definitely one thing that we’re still waiting for some guidance on. I think, if I’m representing a parent, I am not going to let them agree. I’m not going to let them agree, unless they’re really, you know, bad parents.

Jimmy: It’s the right thing to do, yes.

Holly: And if you know, but as a general rule, if I’m representing a good parent or a decent parent who I think can overcome, you know, is going to fold firm under the fit parent assumption, I’m never gonna let them or I’m strongly going to advise them not to agree to let the non parent get any type of access under a court order.

Jimmy: And I think the distinction for our purposes today for your listeners is there’s a distinction probably between agreeing to temporary conservatorship arrangements versus a final conservatorship arrangement. I don’t think there’s any question the way the law is right now, if a parent agrees to the appointment of a non parent for managing conservatorship or conservatorship, then that issue is decided going forward. They don’t have to meet the standing requirements. They don’t have to meet, they don’t have to overcome that fit parent presumption.

Holly: And that’s talking about if it’s a final order.

Jimmy: If it’s a final order. The debate we can have between us, you know, intellectually is whether or not that has any effect on the final relief sought if a parent agrees to the non parent being appointed in a temporary conservatorship arrangement. That has yet to be specifically addressed.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. Providing family law appellate representation across Texas. For more information, visit draperfirm.com or call 469-715-6801.

Holly: And if I’m representing the non parent in that situation, I’m 100% going to argue that that agreement on a temporary basis should bear some weight at a minimum, bear some weight when it comes to a final trial. If I’m representing the parent in that situation, I’m going to argue the opposite obviously.

Jimmy: Of course. Presumably, you know, if the parent is agreeing to that arrangement on a temporary order, you know that ought to have and carry some weight in the trier of fact, whoever that is, the jury or the judge. And it’s probably more argument, you know, it’s more form probably than substance because CJC and the fit parent presumption is still going to apply. The question is just what weight does that evidence have?

And if the court is making findings of fact, for example, if the nonparent prevails, if whether or not that belongs in the finding of fact, and how much weight the court could give that. For example, what if that’s the only fact right that the court found in a particular case? And the court just ran with that to say, look, that’s what the parent agreed to.

And I don’t see any reason to disrupt that. I mean, you know, is that enough? You know, is that enough to overcome, because the parent themselves, you know, basically said that that presumption has been overcome by their consent voluntarily. So that would be an interesting question if a case came to that. But obviously, I don’t know if it would roll that way. I think you’d have to have other facts to support and overcome that parental fitness presumption.

I do want to talk about, you and I did not address initially in working with you, you have raised something for me that for family law litigators, contesting and litigating standing, I think we kind of skipped over it quickly. But it’s really important to know that standing as we talked about as a fact intensive question, it’s really important if you’re asserting standing to raise as many facts as you possibly can.

But you and I think for our listeners, they should be interested to know that the party that is contesting standing, what they have to show is, they have to show the non-existence of a necessary fact. And so that’s why when we’re talking about 102.003a9, maybe a11. But that’s an and requirement. Those three things of actual care, control, and possession and access.

It’s all three of those things. And so if the party, if you’re on the side of representing a party that’s contesting the standing, and you can go in and show the court through some of these cases, and cite that standard, that there is literally no evidence of one of those, quote, necessary facts, then that burden shifts over to the other party who is asserting standing under 102.003a9 or a11, but a9 in this conversation, because all three of those are necessary facts.

And so that burden then would shift to that party to prove that there is some evidence on all three of those facts to raise that fact question. And if there is some facts, like we talked about in in re BAB, the quote says, even though the available proof is thin, they found the evidence was sufficient. And so it’s really important for us to just focus on that for a minute for your listeners who might be litigating that question.

The question is showing the absence of a necessary fact. Look critically at your standing statue that whoever’s asserting standing, because there’s a lot of them, right? And look inside and go back and do what we don’t normally do, go open that code and reread it. Look at what is critically stated in that standing requirement as necessary facts.

And if you’re on the side of contesting it, see if you can assert evidence to basically dismantle like a three legged stool and you can remove one of those legs from the stool. And then that burden shifts. Because if you can do that, and convince the court that one of those three legs of the stool is missing, the case gets dismissed and you win. Then you don’t go to the temporary orders, like you were talking about and have to fight out the parental fitness presumption, and all of that.

But if you’re on the other side, just keep in mind that it’s really not that high of a burden to establish a fact question. It’s kind of akin to summary judgment of just raising a factual dispute. And as long as you can raise some evidence to support those necessary facts of whichever statute you’re asserting standing, then you’re at least in the door, right? You at least get to sin the case and ultimately ask for your relief.

Holly: So we’ve talked a little bit about how, you know, just because you have standing under 102.003a9 or a11, and probably all the rest, probably any of the statutes under 102.003 doesn’t mean, it doesn’t address the issue of the fit parent presumption or the statutory parental presumption that those are two separate things. There are other standing statutes, however, that do incorporate the same type of requirements as the fit parent presumption and the parental presumption.

And those would be 102.004 and then the grandparent access statutes of 153.432 and 153.433. And this goes back to Troxel. And, you know, when the United States Supreme Court put forth, essentially the fit parent presumption, our legislature thought, oh Troxel was about grandparents. So we’re gonna add this requirement in for grandparents. So 102.004 provides standing for grandparents and certain other relatives in a custody case.

But it requires a showing right out of the gates of significant impairment. This is a much more difficult hurdle to overcome. And really, you know, now we’re seeing now that more cases have come out post CJC, that, you know, the significant impairment is the standard to overcome the fit parent presumption. So if you can’t show that right out of the gates under 102.004, you’re out, you lose.

Jimmy: Yeah, there’s no question 102.004. That’s a whole different show, to address and break that down, because that’s a very, very misunderstood topic. It’s commonly misapplied, it’s commonly misunderstood, it’s commonly taken for granted. The standard is very high, the cases are very strictly construed. And the facts that have to be presented, for example, it can’t just be a presumption of significant harm, you have to show actual, you know, physical harm or significant harm.

There can’t just be oh, my God, that parent smokes marijuana every day. And if I let that child in that parents house, you know, it’s going to cause lung damage or whatever. I mean, assumptions, and presumptions just aren’t going to make it. And so that is a very, very difficult burden to meet. And that’s something where if you’re not, if you’re not comfortable with that statute, and you have grandparents coming to you as a family law practitioner, I would definitely get with somebody who is more comfortable to guide you through it.

It doesn’t mean you shouldn’t take it or deal with it, it just means you probably need to get with somebody who’s got experience in dealing with that. Now, I would tell you, a lot of times the grandparent cases that are brought to us as practitioners, right, they don’t have a choice, right? I mean, the facts are bad enough, maybe one of the parents have died.

Or commonly, it’s some kind of a drug abuse or family violence situation, or a combination of that, and or maybe a mix of mental health issues with one or both parents. There’s CPS history typically or something. But if it’s not that bad, or that extreme, but it’s bad enough, I mean, the grandparents probably just don’t have a choice.

But I think it’s really incumbent upon us family law practitioners to be very honest and blunt with those grandparents, that, hey, you spending money on this and filing this, you may not be successful. Or what I will often say to them is we might be successful in the beginning of the case, but your expectations need to be clear that look if these parents or that parent is able to correct or address or mitigate these concerns, you know, as the case progresses, we may end up getting quote dismissed.

Or we may end up getting removed or you know, or the case, you may not be able to ultimately stay in the case. And you have to live with that and be okay with the fact that you doing this prompted that parent to get healthier. And that’s a good thing, right? That’s a good thing for your grandchild and that parent. Because it’s really hard for grandparents to have initial standing and meet that requirement.

But even if you do, it’s almost even more difficult, especially in this post in re CJC era to ultimately be successful and have the court appoint you in some kind of nonparent conservatorship arrangement. And it’s really incumbent upon our family law professionals to make sure that we explain that, because I think a lot of our new family law professionals don’t do that. And they set those grandparents up for expectations, they end up spending a lot of money, and ultimately get really, really frustrated.

Holly: So if you are representing a parent against a grandparent or other the relative that has filed under 102.004, then absent really egregious circumstances involving the parents, you want to file plea to the jurisdiction, or if it was intervention, a motion to strike the grandparents and try to get them kicked out immediately. You don’t want to give them, you should be able to get them dismissed right out of the gates. And that way, you’re never giving them the opportunity to rehabilitate themselves before final trial.

Because the burden here is at the time of filing for them to have standing. And if they don’t meet it, then the case is over. Now I guess when we were talking about you know, they probably did meet it at the beginning, and now they’ve rehabilitated themselves. But regardless unless your parent has really, really bad facts against them, and I mean really bad, the cases show this is very, very hard to prove significant impairment.

You got to try and get them kicked out right at the beginning. And I’ve had people where attorneys have let these cases flounder for 10 months, you know, they’ve had to go through discovery, they’ve had to go through everything and I look at what they’ve got and like, why didn’t you move to dismiss this case immediately?

Jimmy: Yeah, it’s interesting how often that happens. And it’s interesting how often people on both sides don’t address it correctly. For example, one of the most basic elements is you don’t file the grandparent affidavit, as we know it to be right. The requisite affidavit that supports the standing requirements. And how many folks on the other side that are contesting that standing representing a parent don’t file.

You’re not required to file an affidavit. But in my opinion, that’s what you should do. Because the court is required to look at the four corners of those affidavits and deciding really, whether to even proceed or not. It’s not the same, I get it under temporary orders and flipping custody and all that. It’s a whole different topic.

But in my opinion, that’s the way to address that. Now, the real problem you have when you’re representing the parent, and the grandparent at least gets in the door. There’s sufficient evidence right, to meet the staining requirement and the dismissal or the jurisdiction claim is not granted. The real question is, what do you do because there’s no other way to dismiss it from there.

Because what you just said is really important from the litigate from the practitioners perspective, representing the parent anyway, is that once they’re in the door, it’s at the time of filing, that’s when they meet that standard. So let’s say for example, what you and I were talking about a while ago, a parent has drug history or whatever, and has gone out to address that gone to rehab has now successfully re engaged in employment or career, their own family or whatnot.

I mean, they’re you know, they’ve addressed all of those concerns, theoretically, that were brought for the grandparent, in this hypothetical, the meet standing under 102.004. The question is, how do you address that and accelerate that to get to a final trial? Because at that point, it’s not standing. At that point, you’re dealing with the fit parent presumption.

Holly: And I think, you know, if you think if the court lets the non parent in the door, and you really believe they didn’t have standing, that’s when you’re going to mandamus. And if you don’t know how to mandamus, there are a handful of us out there that love to do it.

Jimmy: Call Holly Draper. I have your phone number.

Holly: I have all the briefing on standing for mandamus things, so call me and I’ll be happy to help do that. But, you know, don’t just because judges make wrong decisions all the time. Judges, I have seen almost the vast majority of cases I’ve had dealing with this issue, they feel sorry for the grandparents.

Especially if you’ve had a parent die. They are sympathetic to those grandparents, they want to let them in. But if the law does not back that up, file a mandamus. The Court of Appeals is not going to have that same level of sympathy that the trial court does.

Jimmy: Yeah. And I would say too there’s a distinction between seeking mandamus and recommending somebody to pay those fees under 102.004 in the grandparents standing or other relative standing statute, versus the other 102.003a9 and 11. Because that’s more factually intensive. And it’s much easier to meet those standing requirements.

A mandamus, under 102.004 is almost a given. I mean, if it’s in the budget for a party, and a court has found standing, and you have properly preserved that issue by contesting it and objecting to it. Like, I mean, you almost have nothing to lose by taking it up on mandamus.

The law is so strict in the construction of those facts that if a party can afford it, it’s just kind of a no brainer to try the mandamus. Under the other statute 102.003, I don’t know if you agree with me, but that’s probably not quite as much of a no brainer, because it’s really easy to raise that fact question and to get standing under 102.003.

Holly: I think if you believe that there is no standing, even if it’s under 102.003a9, it’s probably worth having an appellate lawyer look at it, read the record. Usually those transcripts are not gonna be that long. Pay them a little bit so they can review it and give you an opinion because you still might be able to get them out. But it is, again, it’s not as easy. But if you believe that the court got it wrong, it’s worth exploring.

Jimmy: I think it’s worth talking about for the folks listening here. What do you think, because from your perspective, what is the advice to a trial attorney like myself if we’re needing to properly preserve that issue for appeal? You know, for example, we all know that you can’t waive standing, right? So if you didn’t contest it in the beginning and you made that mistake, one, just know that you should raise it as soon as you become aware of it.

You just heard this podcast and your case has been pending for six months. And you’re like, oh, gosh, I should have done that. Well do it, because you can’t waive it. So talk about that, from your perspective. Now I’m playing the interviewer. But you know, what would you say to us trial litigators that we should do to properly preserve that issue? For example, is mandamus even required?

Holly: So I would, if you have never raised the issue, or you haven’t raised it well, leading up to wherever you are now, I would say you want to file a plea to the jurisdiction, and you want to brief the heck out of it. You want to have all the law in there. I mean, I have seen some really bad pleas to the jurisdiction that have very little law don’t apply to this case. They’re terrible.

You want a really solid plea to the jurisdiction that is essentially going to form the basis of your mandamus if you have to file one. And you’re going to set a hearing, and you’re gonna object to doing anything else in that case, before there’s a hearing on jurisdictional issue. Whether that’s temp orders, or trial, or whatever, because you’re gonna make the argument, this is jurisdictional, the court cannot consider anything else until we address this issue.

Jimmy: We all know what happens, we’re just busy, right? We’re trying to address our clients, we have a hectic schedule, we don’t have time to get into Westlaw and look it up and have these beautiful briefs. One, I would say that’s where we need to have phone numbers like Holly Draper and reach out to you, right, because you can help with things like that.

And I think young practitioners or even somewhat experienced ones, we need to recognize when we’re at that limitation, timewise. Because this is not an issue to jack around with, right? I mean, if you’re gonna do it, don’t just take one of these, you know, standard forms and file it, don’t take it for granted. Make sure that if you’re going to do it, do it right. You agree with that, I’m guessing.

Holly: Yes. And, you know, let’s say that a, you know, a lawyer filed, a bare bones not very good plea to the jurisdiction, or let’s say they even called it something else that was wrong. But it was obvious that they were really making a jury plea to the jurisdiction argument, and it didn’t go well, and you lose on the plea to the jurisdiction. I’ve had people come to me at that point, and we file a motion to reconsider.

And we brief the heck out of it there. And we get, you know, we’d rather let our trial judge have an opportunity to have all the information and make the right decision before we have to go to the mandamus. And then, if we go to the mandamus, we can show them look, we presented trial court with the law, the correct law, all of the information, and they still made the wrong decision.

Jimmy: Now, let me ask you, sort of an elephant in the room question because some of our judges we’re not going to name names, some of the judges won’t grant that motion to reconsider. That’s a discretionary call on the part of the court. But let’s say that you need to, like you realize, now you’ve had coffee with Holly Draper, or you heard a podcast from her.

And you realize now you left out a certain critical piece of evidence that knocks out a necessary fact, right. And you need that motion to reconsider. How does the trial litigator, what do you file? This is obviously a trick question. We know the answer. But you know, what is that answer for those listening to our conversation today?

Holly: So the key on a mandamus, is that whatever you’re going to argue has to be in the record. That doesn’t mean it has to be in a transcript, but it can be in the clerk’s record. So if you file a motion to reconsider, even if the court just denies it, or doesn’t give you a hearing, it’s now in the record, because you filed it with the court. If the court won’t give you a hearing on something, and you really need it for, you know, I need to get this piece of evidence in that the court isn’t aware of, I would file some sort of objection and say, look, court, this is the evidence I have.

Here’s an affidavit from my client that’s explaining it. And then if the court doesn’t give you that hearing, you can now rely on whatever was filed to let the appellate court know look, the trial court was presented with this information and they still wouldn’t give us a hearing.

Jimmy: And that’s my point is, from the practitioner standpoint. What you want to do is I think at that point, it’s an eggs in one basket kind of situation. When you file that motion for reconsideration. A lot of us again, for time sake, we just file a one page, you know, just straight motion for reconsideration. But we’re not thinking on appeal or for that mandamus. We’re not really thinking that far ahead.

But let me just say out loud for those people listening if you have a non parent versus parent situation, it is incumbent whichever side you’re on, you’ve got to be thinking about these kinds of technicalities, because the courts of appeal and the Supreme Court are looking for these kinds of cases, and you don’t want to find yourself in that situation where you represented one side of the other? Lots and lots of fees out the door and you miss the technicality. Like, you know what, you don’t raise a certain objection or a certain evidence.

The reason I’m saying that is because in that motion for reconsideration, that’s where you need to think of however many affidavits plural or affidavit needs to be filed, you need to attach the evidence that you think you can raise, you need to go back in my opinion, if you have the ability to get that transcript from before, show the court in your motion, what was addressed and what was not addressed, what you’ve now become aware of, and why that evidence essentially knocks out an essential fact.

And if you can put that in the record like what you, Holly, you’re saying, and the court then denies the reconsideration, then you have the ability to hire somebody like Holly and take it up on a mandamus because you’ve then properly preserved it. Now, would you agree with me that you need to push the court to actually deny the hearing? Or what if the court just doesn’t schedule it? What if they ignore you.

Holly: I think you press the court for a ruling, one way or another. Whether that’s a hearing, or that’s just denying the motion. So I think it’s very court specific on how exactly to go about that.

Jimmy: Because oftentimes, a judge will just friendly, you know, we call it chamber, right, they’ll just bring us in chambers or whatnot. And or even these days through email, they’ll just say, well, let’s hear, XYZ, and maybe we’ll take this up when we get there. Or you get to the reconsideration, but it’s not heard, you know, the court gets you off on a dialog about agreeing to pre-trial stuff. And maybe a trial was set for three or four months down the road, and you forget in the moment as the practitioner to force that ruling, right.

So for our listeners, it’s really, really important to remember on this issue for standing, when you’re dealing with non parent and parent, I mean, really, anyway, but specifically for non parent and parent litigation, you’ve got to make sure you’re thinking about properly preserving that objection on standing.

Holly: So we’re just about out of time, but there’s one more standing issue I wanted to be sure and raise. And that relates to the grandparent access statute, 153.432, and 153.433. This is sort of similar to 102.004 in that you have to have a showing of significant impairment. And for grandparent access, you have to attach an affidavit that is going to show that denial of access to the grandparent is going to significantly impair the child. This is a very, very high burden to meet.

And I get hired on these cases, regularly, and I come in and I file a motion to dismiss for a, you know, plea to the jurisdiction, basically. A motion to dismiss for lack of standing, because their affidavit is deficient. They should not get a hearing. No witness should ever take the stand when you have a deficient affidavit. Usually they get it dismissed immediately. And I have hearings on these that they last 10 or 15 minutes, and it’s completely over.

I’ve had people hire me where the case has languished for 10 months, a year, where the attorney never filed this motion, and the other side never filed any more substantive affidavit. Usually what happens if we file that plea to the jurisdiction, they’ll try and beef up their affidavit. If they’re if the lawyer is any good, they will file an amended affidavit trying to beef it up. Most of the time, if they had silver bullets that were going to get there, they wouldn’t have included them to begin with.

So if you are defending against a grandparent access case, kill it as fast as you can. Don’t let them dig. The statute does not give them the right to do discovery and dig for that evidence to prove significant impairment. Same thing under 102.004. The statute does not let you do discovery to dig for it. That’s why you have to file it right out of the gates.

Jimmy: That’s a whole other topic to break down. We can spend an hour on that statue just in and of itself.

Holly: Yes, definitely a podcast for another day. But I didn’t want to let our standing discussion go without making sure that any attorneys out there listening know, that’s a standing issue, the grandparent affidavit. And if you’re representing the grandparent, you better be sure it is rock solid, and you understand the law and what needs to be in that affidavit. And if you’re representing the parent, you better go attack it right out of the gates.

Jimmy: And that’s what we were talking about earlier that if you don’t take very many grandparent cases, and you’re taking one on or consulting with grandparents, make sure you research that statute and what’s required because the case law is very strict in terms of how to meet that significant impairment standard. It’s very high.

Holly: So we’re basically out of time. But one last question I like to ask everyone that comes on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

Jimmy: My piece of advice would be to go try as many hearings as you possibly can, and overcome the fear of looking stupid, overcome the fear or manage that of not being successful. Because ultimately, I think where I have been successful is because I just did so many hearings and so many trials, that you learn what the judges know, what they want to hear.

You learn what they like to hear you learn why and how they rule in those situations. And win or lose, that’s really the greatest teacher, plus, you end up going up against some of the really good family law attorneys. And you just, you’ll learn that way. And probably the other corollary piece of advice to that, because I did not follow this advice initially.

I would try to be, you know, make better friends with colleagues. And use humor where you can. Try not to take our cases personally, don’t personalize it. You know, our colleagues are typically mothers, dads, family members. I mean, they’re just like everybody else trying to raise their family and make a living. And cases can really, you can really do a lot of good for clients when you’re able to pick up the phone and have a relationship with the other attorney and just talk your way through them.

So try to be collegial. It’s okay to be firm, it’s okay to go knock heads when you have to. But definitely don’t take it personally. And don’t personalize the other side if you can avoid that. But try as many cases and hearings as you possibly can. If you’re not able to do that, invest in the time. I know being out of the office and not being billable and all, we stress about that. But invest in the time to go watch trials and hearings, if you can.

Holly: Excellent advice. So where can our listeners go if they want to learn more about you?

Jimmy: Our website is www.evansfamilylawgroup.com. Or I have the website agreeddivorces.com which is a whole nother topic some other day, but that’s where you can go to find out more about us.

Holly: Great. Well thank you so much for joining us today. For our listeners, if you enjoyed this podcast take a second to leave us a review and subscribe so you can enjoy future episodes.

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