Transcript

Holly Draper: There is absolutely nothing in the family code that permits a grandparent to file suit and then go on a fishing expedition trying to find evidence of significant impairment. They have got to have that evidence before they file and it has got to appear in an affidavit. This is why it is so critical when you’re representing the parents, if that affidavit is insufficient, you file a plea to the jurisdiction or motion to dismiss immediately.

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: Hi, everyone. This is Holly Draper, the CEO and Managing Partner at the Draper Law Firm. And I wanted to pop on today to do a solo episode for you on the topic of grandparent rights and grandparent access cases. A lot of you probably know me, because of my work in CJC, and non parent child custody litigation. And grandparent cases tie right along with that. We have a lot of the same constitutional implications.

But grandparent access cases specifically, generally do not implicate CJC, because they have their own specific statutes that include the constitutional protections of significant impairment. So when we’re looking at a grandparent access case, the Texas family code provisions that are relevant are 153.432, and 153.433. This is when you have a grandparent who is only seeking access, not seeking conservatorship or an alternative of conservatorship with separate standing under 102.003 or 102.004.

Today, we’re just gonna be talking strictly about the grandparent access statute. It is super, super important to understand, particularly if you’re representing the parent or parents, but both sides need to be really well aware of this, that standing is a really big piece of the grandparent access statute that many, many, probably the vast majority of grandparents do not meet and do not qualify to have standing.

Standing is a subject matter jurisdiction issue and a court cannot assign a case without subject matter jurisdiction. A party’s lack of standing deprives the court of subject matter jurisdiction and renders any subsequent action by the trial court void. You do not have to raise this standing issue right out of the gates. I would highly recommend that you do that though, so that you are not wasting your clients’ money, litigating a case where there is no standing. But this happens regularly.

For me, I get brought in on grandparent cases where they’ve been pending for six months, a year. There have been temporary orders. There have been other things, there’s been discovery, there have been things that have been done along the way. And the attorney originally representing the parent never bothered to try to get them out on standing. So we will always do that.

The very first thing when we get into a grandparent access case, assuming we think that’s appropriate under the circumstances. So for a grandparent to have standing to file a grandparent access case, both the petition and the affidavit must meet the requirements of 153.432. 153.432 allows a biological or adoptive grandparent to file an original suit for possession of or access to a grandchild. The grandparent seeking such access must, quote, 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.

This is where people get hung up. They do affidavits for grandparent access. And they talk about the relationship, the strong relationship between the child and the grandparent. They talk about the fact that they really miss their grandchild and they really want to be involved and that the child deserves to have a relationship with the grandparent. None of those things qualify as significant impairment. And I’m going to talk in a little while more about what significant impairment means.

But if you are representing a parent and you see an affidavit that only includes those type of facts, bells should be going off in your head immediately. You should be able to get this case dismissed really, really quickly. 143.432 goes on to say that the quote, 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 153.433, which is grandparent access.

There is absolutely nothing in the family code that permits a grandparent to file suit and then go on a fishing expedition trying to find evidence of significant impairment. They have got to have that evidence before they file, and it has got to appear in an affidavit. This is why it is so critical when you’re representing the parents, if that affidavit is insufficient, you file a plea to the jurisdiction or motion to dismiss immediately.

Do not give the grandparents an opportunity to do discovery, to request records from you, to dig into things that might end up showing them significant impairment. You want to get that case dismissed right out of the gates. Not to mention, it costs a lot for your client to have to go through the discovery process. And so it is harming your client if your client is the parent if you let this case linger and let the grandparents take them through the litigation process. So under section 153.433 of the Texas family code, a court may order reasonable possession of or access to a grandchild by a grandparent if the following conditions are met.

Number one, at the time that relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated. Number two, the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the child by proving by preponderance of the evidence that denial of possession of or acts to the child would significantly impair the child’s physical health or emotional well being. And number three, that the grandparent requesting possession of or access to the child is a parent of a parent of the child.

And that parent of the child has either been incarcerated during the three months preceding the filing, been found by a court to be incompetent, is dead, or does not have actual or court order possession of or access to the child. So as you can see with those very specific parameters, most grandparents don’t even qualify for grandparent access. You got to have someone dead, you got to have someone who doesn’t have a court order right to possession.

Because there’s a presumption that the parent gets to decide should this grandparent have access to my child or not? The sections of the family code, you might think in hearing these provisions that this does kind of sound a lot like CJC. It is. These sections of the family code were redrafted following The United States Supreme Court decision in Troxel versus Granville. And Troxel vs Granville is the case that I primarily relied upon in arguing for CJC. If you’re not familiar, in Troxel, the United States Supreme Court found that parents have a fundamental right to make child rearing decisions without interference from a trial court even if the trial court believes that a better decision could be made.

Troxel happened to involve the constitutionality of a non parent access statute in the state of Washington. It just so happened that the nonparents in Troxel were grandparents, so when the United States Supreme Court set forth the Troxel decision, the Texas Legislature and the Texas Supreme Court put these protections in with respect to grandparents and other relatives. So the grandparent access statute and the requirement of significant impairment was a direct result of Troxel.

In a number of decisions since Troxel, the Texas Supreme Court has held that so long as a parent adequately cares for his or her children. I.e is fit, there will normally be no reason for the state to inject itself into the private realm of the family. This is something that we have seen cited in CJC, in re Derzapf, which is a really big grandparent access case out of the Texas Supreme Court.

In re Mays-Hooper, which is another one out of the Texas Supreme Court. In CJC, the court went on to say when a non parent requests conservatorship or possession of a child, the child’s best interest is embedded with the presumption that it is the fit parent, not a court who makes the determination whether to allow that request. So in light of all of this, a grandparents seeking access to a grandchild has to overcome a very hefty statutory burden imposed by section 153.432c and 153.433 of the family code in order to have standing and even get into the gates to move forward with a case.

Much less to actually obtain the relief that they’re seeking. One of the cases that I mentioned was in re Mays-Hooper. So a Texas Supreme Court grandparent case. In that case, the court explained that at a minimum, a grandparent supporting affidavit should include allegations regarding the parent’s fitness, specific facts regarding the physical or emotional harm the child may suffer if the court follows the parent’s decisions regarding access, and evidence of the parent’s complete denial of access to the child.

So if that parent is letting grandma see little Johnny, once a year, we don’t have complete denial of access to the child. It’s really important as an attorney, whether you’re, when you’re taking on a grandparent access case to establish what kind of access is there. Has it been completely cut off? Has the parent told the non parent you’re never going to see this kid again.

Has the parent cut off contact, blocked them in their phone, done those sorts of things to completely cut off access. In the case of in re Sullender, the court held that a grandmother’s petition should have been dismissed because her affidavit failed to make any allegations that if true, would overcome the strong presumption in favor of the parent.

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: In another Texas Supreme Court case, Scheller even allegations regarding the significant impact of a child’s loss of family members, combined with examples of the emotional harm that the children experienced following the death of their parent for not sufficient reasons to grant grandparent access to a child over the wishes of the fit parent. In re Derzapf, the Texas Supreme Court found that allegations of a child’s lingering sadness due to lack of contact with the grandparents was not enough, or that sadness did not manifest itself as depression or behavioral problems or acting out.

The court held that it did not rise to the level of significant impairment. I think Derzapf is a really difficult case for grandparents. In that one, the trial court had even a court appointed psychologist was involved in that case, who found that the children had formed attachments with the grandparents, and that it would be unhealthy to cut them off. The Texas Supreme Court said that was not enough.

In my opinion, you know, if you have an expert saying it is going to be unhealthy for these children to have the relationship with the grandparent cut off, and that’s not enough, you know, is it really possible to overcome this burden? And if it is, it’s extremely difficult. You have got to have the silver bullet of facts against a parent. The tricky thing with that, I think, is how do you have facts of significant impairment that are bad enough to cross this line, where you only have a grandparent access case and not a conservatorship case.

Because if a parent is doing something that is so bad, and taking action that is so detrimental to a child by cutting off this relationship with the grandparents that it’s going to rise to the level of significant impairment, should they still be the managing conservators of the child? I don’t know. I think it’s a super, super hard burden for grandparents to overcome. And when you’re representing a parent, you need to remember that. And use that and use it to get those grandparent cases dismissed.

So a few other cases where we have, I thought it’d be helpful to go through where allegations were deemed insufficient to confer standing in a grandparent access case include the following. So in in re Turan, that’s t u r a n, the court is Corpus Christi, Edinburg Court of Appeals found that a grandparent’s desire to ensure that the child has a relationship with their siblings, along with allegations that the child will wish to spend more time with their grandparents did not rise to the level of significant parent.

In the interest of H L, which is out the Fort Worth Court of Appeals, the court found that a grandparent’s conclusory statements and unsupported predictions, that denial of possession or access would significantly impair the child’s physical or emotional well being in the future is not enough. I see this all the time in affidavits where grandparents essentially make conclusory allegations that it’s going to be harmful to the children if you cut off, if they don’t get to see the grandparents. And that, that’s not going to do it.

That does not get you there. Just because you use the buzzwords of significant impairment in your affidavit does not mean that you’ve shown significant impairment. One other case is in re, J. M. G, and that one came out of the El Paso Court of Appeals. And in that case, the court found that having an active relationship with the children prior to the parent’s incarceration, coupled with the children expressing that they missed the grandparent and wanted to visit with the grandparent was not enough to show significant impairment.

So what should you do if you represent a parent, and a grandparent access case is filed against them? First thing you should be doing is looking at the pleadings, looking at the affidavit and trying to figure out if you believe this meets the requirements of the code to confer standing. Is that affidavit sufficient? I’m gonna tell you probably 99% of the affidavits that I have seen, are not sufficient for standing.

Now, again, we all know that judges can be very sympathetic to grandparents. I’ve seen that a lot. So if there’s some evidence that would support a finding of significant impairment, you might not be able to get out at the standing stage. But you should still try. So how do you do that? You want to file a plea to the jurisdiction and motion to dismiss as soon as possible. If this case has just been filed, and you get retained right away by the parent, read the affidavit. If you don’t think it’s sufficient, immediately plea to the jurisdiction a motion to dismiss.

Get it set for hearing as soon as possible. If you get retained later in the case, which we all know that happens, people change attorneys and the first attorney wasn’t, didn’t know what to do. They weren’t familiar with this. They never filed a plea to the jurisdiction or motion to dismiss. No matter where you are in the case, that should be your first step. If the affidavit is not sufficient, you’re going to file this. It should be heavily briefed.

Your motion should have all the law, it should lay out, you know, examples of what did not constitute significant impairment in other cases, and explain why the affidavit in this particular case doesn’t meet those requirements, either. So if you file a plea to the jurisdiction, motion to dismiss, and you have a hearing on it, it should be argument only. It’s a legal issue. And you’re going to want to argue they don’t get to go on a fishing expedition. It is strictly limited to the facts of the affidavit. If it’s not enough, their case is dead, it’s over.

If you have a hearing on this, and you lose, and you believe that the law is on your side, and this affidavit is insufficient, you’re going to want a mandamus. Do not make a client go all the way through to the end and have a final trial in this case, when it should be dead in the water. If you don’t know how to go mandamus, contact an appellate attorney to either handle it for you or help you with it. This is right in our wheelhouse. We do a lot of briefing, a lot of mandamuses on this type of issue. Happy to help with yours if you need it. Because these are the types of, it’s normally extremely hard to win on a mandamus.

Success rate is very, very low. But this is the type of case where you can win on a mandamus. If the judge gets it wrong, and let me tell you, a lot of judges get it wrong, particularly when it comes to grandparents that they are sympathetic to, this is where you want to file a mandamus and you should be able to win. So if you don’t win at that stage, and you either can’t file a mandamus because of financial reasons or whatever, and you’re gonna have, you’re gonna go, you’re gonna have a final trial.

You still want to continue to assert a lack of standing, you want to assert the affidavit is insufficient, and you want to focus on the facts of significant impairment in your trial. You know, a lot of the grandparent cases out there the affidavit got them in the gates. Derzapf is a good example. Where they get to the point of a trial on the merits because the affidavit was sufficient. But at the trial on the merits, the evidence actually presented did not rise to the level of showing significant impairment.

So you want to focus your argument and your questioning on the issue of significant impairment. So what happens if you are representing a grandparent? And should you turn down all grandparent cases? Is there no hope for grandparents? What do we do here? I would say, you know, I would strongly encourage attorneys to be very honest with grandparents about the reality of the law in this area. Their odds of success, even under the best of facts for them are generally going to be low.

That being said, that doesn’t mean you shouldn’t take a case. As I mentioned before, there are a lot of judges who are sympathetic to grandparents and are going to find significant impairment where it might not exist. Can the parents afford to appeal? Can the parents afford a mandamus? Do the parents have a lawyer that knows what they’re doing? That’s going to file a plea to the jurisdiction and get your case killed right out of the gates? Maybe, maybe not.

Does filing the case lead to a settlement with the other side that gives the grandparents some access, they otherwise would not get? It might. You know, I’ve certainly seen that happen. A settlement is best case, usually the best case scenario for grandparents. If they can get the other side to agree to some sort of court ordered access, that they would probably never get in a courtroom, you know, they should consider themselves very lucky.

So if you are representing the grandparents in a grandparent access case, you have got to make sure that affidavit is as beefed up as it possibly can be with the facts to support significant impairment. Sure, you can include in there that, you know, the child misses me or the child wants to see me or it’s going to be, you know, some vague allegation about that it’s going to be harmful to the child not to see me.

But those things alone are not going to get you there. And I don’t even know what to tell you will get you there. Because it’s hard. But you want to put at the kitchen sink in there of the facts to support significant impairment to try to get over that hump. And remember, denial of access is not enough. It is one element that you’re going to need to prove to get access. But that by itself is not enough. So that’s kind of the nuts and bolts of a grandparent access case.

I think, you know, under the current state of the law, it’s frankly surprising how many grandparent access cases we see because it’s so unfavorable to grandparents. And I think it’s, frankly unethical for attorneys to file a suit when you know, your client has no standing. Or when you know your client really is not entitled to anything under the law, but it happens. And so when it does, if you’re representing the parents, you got to be ready to kill it out of the gates.

And that’s definitely going to be the best thing for your clients. And if you’re representing the grandparents, dig in as deep as you can to find out whether or not significant impairment can be found. So hopefully, that is some helpful information for everyone. And I’d like to ask a quick favor. If you could take a second and go leave us a five star review on the podcast. We would greatly appreciate it and you can also subscribe to enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com