North Texas Family Law Blog : Dallas Divorce Lawyer : Dallas Divorce Attorney : VernerBrumley PC : Serving Dallas, Plano, Fort Worth, Texas

Jimmy Verner announced today that Grandparents' Rights in Texas is now available as a Kindle eBook from amazon.com. A physical copy will soon be available through amazon's CreateSpace feature.

In 2000, the United States Supreme Court decided a case called Troxel v. Granville. The Court ruled that a grandparent may not obtain visitation with a grandchild over a parent's objection unless the grandparent can demonstrate that the parent is unfit. Since 2000, the Texas Supreme Court has addressed grandparents' rights three times, and the Texas legislature has substantially amended the grandparents' rights statute. It is now reasonably clear what rights grandparents have — and what rights they lack — under Texas law.

Mr. Verner became interested in Troxel shortly after the Supreme Court decided the case. He published two articles on the web about Troxel. In response to numerous inquiries, Mr. Verner consolidated, updated and expanded the articles into this book.

The book overviews Troxel v. Granville, then introduces the reader to the sometimes–bizarre Texas terminology describing what other states call custody and visitation. The book then returns to Troxel v. Granville, after which it examines the three Texas Supreme Court cases applying Troxel v. Granville. Next, the evolution of the Texas grandparents' rights statute is outlined. The book concludes with conclusions to be drawn from Texas' interpretation of Troxel v. Granville and a bulleted summary of grandparents' rights law.

The appendix includes copies of Texas' current grandparents' rights statute, Troxel v. Granville, and the three Texas Supreme Court cases applyingTroxel v. Granville to grandparents. The book is designed as a starting point for the attorney's research and as an overview of grandparents' rights law for the nonlawyer.

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The courts have made it clear that parents have a fundamental right to custody of their children.  For this reason, grandparents sometimes are denied visitation with their grandchildren when their child - the children's mother or father - dies.  But what happens when the parents are divorced and the parent who had custody of the children dies? 

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies - unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children's welfare.

This ruling came about when a custodial mother died.  The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas.  The maternal grandparents filed suit to obtain legal custody of their grandchildren.  The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is "a serious immediate question concerning the welfare of the child."  The grandparents argued that the children should have remained "with the people who can provide them the most comfort:  their grandparents and their nanny."  But the San Antonio Court ordered the children returned to their father.  It held that "merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child's welfare in the habeas corpus context."

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In an unusual ruling, the Texas Supreme Court reversed an award of $47,178.50 in attorney's fees against a grandmother who unsuccessfully sought custody of her granddaughter.  In In re: Moore, the Court held that although the grandmother ultimately had been unsuccessful in gaining custody of her granddaughter, she had "at all times subjected herself and [the child] to the jurisdiction of the trial courts, sought their decisions, and followed their rulings."

Shortly after the child's birth in December 2004, the grandmother petitioned the district court for custody of her grandchild.  The trial court ordered that the grandmother have temporary custody.  In May 2005, the child's mother asked the court of appeals to order the grandmother's suit dismissed because the grandmother had no standing to bring the suit under any provision of the Texas Family Code.  The court of appeals granted the mother's request in June 2005, and the suit was dismissed.

But one of the bases for standing is that a person has had "actual care, control, and possession of the child for at least six months."  More than six months had passed since the grandmother obtained temporary custody of her grandchild in December 2004, so the grandmother filed a new petition for custody in which she set out the new basis for standing.

Again the child's mother asked the court of appeals to order the lawsuit dismissed.  The court of appeals ordered dismissal and that the grandmother pay the mother's attorney's fees as a sanction because of the grandmother's "intransigence and disregard for the previous judgment of this Court."

The Texas Supreme Court disagreed with that ruling.  The Court noted that the second petition for custody was based on a different ground for standing than the first petition so that the grandmother had not disregarded the court of appeals judgment by filing the second petition.  The Texas Supreme Court held that the court of appeals had abused its discretion when it ordered payment of these attorney's fees.  It ordered the court of appeals to vacate that award.

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In Texas, there have been three ways for a grandparent to seek custody or visitation with a grandchild.  Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request visitation.  Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ.  For background, see Grandparents' Rights in Texas and Grandparent Access in Texas.

In its 2007 session, the Texas legislature expanded the class of persons who could obtain custody of a child.  Under Texas Family Code section 102.004(a), the right to seek custody of a child has been extended to adults related to the child "within the third degree of consanguinity."  Also, Texas Family Code section 102.006(c) now permits most of these persons to seek custody of a child when the Texas Department of Family and Protective Services has terminated the parental rights of the child's parents, provided suit is filed within ninety days of termination.

What does "consanguinity" mean, and which relatives are within the third degree of consanguinity?  The anti-nepotism provisions of the Texas Government Code answer these questions. "Consanguinity" means related by blood.  In addition to a child's parents, relatives within the third degree of consanguinity are a child's brother, sister, grandparent, great-grandparent, and aunts and uncles by blood rather than by marriage.  The only group of these relatives that cannot seek custody of a child after termination is great-grandparents.

These changes are welcome.  The previous law ruled out responsible, caring relatives who could have stepped in to rescue a child from a poor environment.  Further, termination (at least by TDFPS) does not preclude a relative from seeking custody of a child.

Texas Family Code section 102.004(a) applies to suits filed on or after September 1, 2007; Texas Family Code section 102.006(a) became effective June 15, 2007.

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