CASES FROM TEXAS COURTS OF APPEAL ADDRESSING STANDING AND
RIGHTS OF GRANDPARENTS AND NON-PARENTS WITH REGARD TO
CHILD CUSTODY, ACCESS, AND VISITATION

TEXAS SUPREME COURT CASES WITH OPINIONS

In Re Chambless, No. 07-0767, 51 Tex. Sup. Ct. J. 1111 (Tex. Jun. 27, 2008) (per curiam) (orig. proc.)
(grandparent visitation improperly granted; mother's due process rights disregarded)(mandamus granted)
In re Moore, No. 06-0544, 235 S.W.3d 210  (Tex. Aug. 31, 2007)(per curiam) (SAPCR, sanctions in child
custody dispute between parent and non-parent vacated by mandamus)
In Re Ricky Derzapf, No. 06-0669, 219 S.W.3d 327, 331-32 (Tex. 2007) (orig. proceeding) (per curiam)
(Texas Supreme Court grants mandamus to vindicate natural parent's superior rights)
In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (orig. proc.) (parent prevails over grandparent in dispute over
grandparent visitation, Supreme Court grants mandamus relief)
Kiefer v. Touris (Tex. May 26, 2006)(bill of review, paternity, nonpaternity)


CONTROLLING U. S. SUPREME COURT PRECEDENT

Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (parents' fundamental right to decide
who has access to their children)

CASES DECIDED BY TEXAS COURTS OF APPEALS

Dallas Court of Appeals

In re M.P.B. No. 05-07-00093-CV (Tex.App.- Dallas June 20, 2008)(primary JMC for grandmother affirmed)
("M.P.B.'s father appeals the trial court's order appointing M.P.B.'s grandmother as the non- parent primary joint
managing conservator and Father as a parent joint managing conservator. In three issues, Father contends (1)
Grandmother did not have standing to bring suit, (2) the trial court denied him the right to a jury trial, and (3)
Grandmother failed to overcome the statutory presumption that it is in a child's best interest to have custody
awarded to a parent. We overrule Father's issues and affirm the trial court's order.")

In re B.N.S., No. 05-07-00016-CV, 247 S.W.3d 807 (Tex.App.- Dallas, March 19, 2008)(access denial on
appeal) ("This is an appeal from an order granting Kathy Hartzog and Jerry Grills possession of their three
grandchildren pursuant to the grandparent access statute. See Tex. Fam. Code Ann. § 153.433 (Vernon Supp.
2007). The children's father, James Radford Sayman, challenges the trial court's order, asserting (1) Hartzog
and Grills failed to satisfy the statutory requirements for such an order, and (2) the order is unconstitutional
because Sayman is a fit parent and there is no evidence he would completely deny access to the children or
that the children would suffer emotional harm if the trial court deferred to his decision. Because Hartzog and
Grills do not meet the statutory requirements of section 153.433 of the family code, we reverse the trial court's
judgment and render judgment that their petition is denied.")

In re J.R.D., No. 05-06-01554-CV (Tex.App.- Dallas, December 19, 2007)(trial court order granting access
reversed by court of appeals; grandparent did not meet burden set by statute to rebut that parental presumption
("This is an appeal from an order granting Ted and Anita Dettmer access and visitation with their paternal
grandchild, J.R.D. J.R.D.'s mother challenges the trial court's order contending, among other things, that the trial
court erred in not granting her motion for judgment because the Dettmers presented no evidence to meet their
statutory burden of proof under section 153.433 of the Texas Family Code. We agree the Dettmers failed to
meet their statutory burden. Accordingly, we reverse the trial court's order and render judgment denying the
Dettmers' petition for access. Because all dispositive issues are clearly settled in law, we issue this
memorandum opinion.")

Turner v. Zellers, No. 05-06-00093-CV, 232 SW3d 414 (Tex.App.- Dallas, Sep. 4, 2007)

In re D.R.D., No. 05-06-00666-CV, (Tex.App. Dallas August 8, 2007) (grandparent access denied, no evidence
to support applicable standard, i.e. that denial of access would significantly impair the child's physical health or
emotional well-being.)
("To prevail on her petition for access, Rushing had to overcome the presumption that Randolph was acting in
the best interests of D.R.D. by proving by a preponderance of the evidence that denying Rushing access to
D.R.D. would significantly impair the child's physical or emotional health. Id. The record before us contains no
evidence from which the trial court could conclude Rushing met her statutory burden. ")

Fort Worth Court of Appeals

In re J.P.C., No. 02-07-00184-CV (Tex.App.- Fort Worth, July 17, 2008)(death of parent, grandparent
intervention unsuccessful, access order reversed by court of appeals)
("We have closely reviewed the record in this case for evidence that denial of access would significantly impair
J.P.C.'s physical health or emotional well-being, and we are unpersuaded by the grandparents' arguments.  Our
review of the record shows that the grandparents have not presented any probative evidence to show that
J.P.C.'s physical or emotional health would be significantly impaired by the denial of access.  See Butnaru, 84
S.W.3d at 211.  Instead, the grandparents have offered only bare, unsupported allegations that the denial of
access would significantly impair J.P.C. * * *
After reviewing the record, we determine that the evidence produced by the grandparents, largely consisting of
their own feelings and speculations, did not rise to the level of proving by a preponderance of the evidence that
denial of access would significantly impair the physical health or emotional well-being of J.P.C.  The mere
opinion of the grandparents themselves and an interested, nonexpert witness that the grandparents should be
granted access does not overcome the statutory presumption, nor does it support the court's interference with
Dayna's parental rights by awarding the grandparents court-ordered access to J.P.C.  Thus, the grandparents
have failed to show that the denial of access would significantly impair J.P.C.'s physical or emotional well-being.  
Because a trial court has no discretion in applying the law to the facts, the trial court's determination that the
statutory presumption was overcome was an abuse of discretion.")

In re W.M, No. 02-07-00028-CV (Tex.App.- Fort Worth, June 28, 2007)

Houston Courts of Appeals

In re Kevin J. Smith, No. 14-08-00164-CV , ___ SW3d ___ (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost)
(SAPCR, grandparent access mandamus denied, standing requirement for access satisfied)

Taylor v. Taylor, 254 SW3d 527 (Tex.App.- Houston [1st Dist.] March 20, 2008)

In re Collins, No. 14-07-00624-CV, 242 S.W.3d 837 (Tex.App.- Houston [14th Dist.] Dec 17, 2007)

In Interest of C.A.M.M., No. 14-06-00279-CV, 243 S.W.3d 211 (Tex.App.- Houston [14th Dist] October 30, 2007)
(Guzman) (SAPCR, nonparent custody, grandparent must overcome presumptionthat parents act in best
interest of child) Concurring Opinion by Justice Frost

Heiskell v. Kendrick (Tex.App.- Houston [14th Dist.] October 26, 2007)(Hedges)(SAPCR, grandparents)

Bolton v. Schultz (Tex.App.- Houston [14th Dist.] July 17, 2007)(Anderson)(SAPCR, intervention, adoption
dispute)

Whitworth v. Whitworth, No. 01-04-01026-CV, 222 S.W.3d 616 (Tex.App.- Houston [1st Dist.] March 16, 2007,
no pet.)(Hanks) (subst. opinion on rehearing)(family law, SAPCR, SMC, grandparents, standing to intervene)
"Based on our review of the evidence, we conclude that the trial court did not abuse its discretion in appointing
Carol as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing
Tammy as a managing conservator would result in serious physical or emotional harm to K.C. See Brook, 881
S.W.2d at 298. We also hold that the trial court did not abuse its discretion in awarding Tammy less than
standard possession."

Monroe v. Alternatives in Motion, No. 01-05-01188-CV, 234 SW3d 56 (Tex.App.- Houston [1st Dist.] Feb. 22,
2007)

In re Schoelpple, No. 14-06-01038-CV (Tex.App.- Houston [14th Dist.] February 13, 2007)(per curiam denial)
(family law,SAPCR, grandparent access, effect of nonsuit on intervention)

San Antonio Court of Appeals

In re S.L.M., No. 04-07-00566-CV (Tex.App.- San Antonio June 18, 2008) (nonparent standing, sibling visitation)
("[S]ection 102.004(b) [of the Texas Family Code] explicitly sets forth who may intervene in a suit seeking to
establish managing conservatorship. Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2007). Gary and Cindy
B. did not meet that criteria. In a similar context involving a step-grandparent, the Texas Supreme Court rejected
a standing argument based on an asserted justiciable interest, holding, "We cannot conclude that [the
step-grandparent] has a justiciable interest in the controversy sufficient to override the statutory text" that
explicitly sets forth who may sue for access. In re Derzapf, 219 S.W.3d 327, 332-33 (Tex. 2007). Similarly, in this
case, we cannot conclude that Gary and Cindy B. have a justiciable interest in the controversy sufficient to
override the statutory text requiring them to have substantial past contact in order to intervene as an "other
person." See id.") ...
("Although section 153.551 establishes a statutory right to seek sibling access, section 102.0045 requires the
sibling requesting access to be at least 18 years of age. (2) Tex. Fam. Code Ann. § 153.551, 102.0045 (Vernon
Supp. 2007). Since S.B. is not at least eighteen years of age, she does not have standing to seek sibling
access. Id.; but see generally Paige Ingram Castañeda, Comment, O Brother (or Sister), Where Art Thou:
Sibling Standing in Texas, 55 Baylor L. Rev. (2003) (arguing legislature should extend standing to both adult
and minor siblings and allow them to petition court for sibling access or visitation).")

In re J.O. No. 04-07-00752-CV (Tex.App.- San Antonio, May 14, 2008)

in re Ray Ellison Grandchildren Trust, No. 04-06-00704-CV (Tex.App.- San Antonio, April 2, 2008)

In re M.A.S., No. 04-06-00626-CV, (Tex.App.- San Antonio September 12, 2007)
("Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her
children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that
the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an
original custody proceeding but not to a modification proceeding. We agree.")

In re deFilippi, No. 04-07-00506-CV, 235 S.W.3d 319 (Tex.App.- San Antonio, August 30, 2007)(children
ordered returned to father after mother's death, superior custodial rights compared to grandparents)
In this original proceeding, relator Christopher R. deFilippi seeks a writ of mandamus to obtain possession of his
three children after the unexpected death of their mother. The Honorable Oscar J. Hale, Jr., Judge of the 406th
Judicial District Court of Webb County, denied relator's habeas corpus petition. We conclude that the trial judge
had a ministerial duty to return the children to their father and therefore conditionally grant mandamus relief.

In re H.G. No. 04-07-00656-CV, ___ SW3d ___ (Tex.App.- San Antonio, June 11 ,2008)(grandparents of
adopted children lack standing, attempted intervention in adoptive parents' divorce, quasi-estoppel)

In re Sanchez, No. 04-06-00809-CV, 228 S.W.3d 214 (Tex.App.- San Antonio, April 4, 2007) ("Jennifer Sanchez
seeks a writ of mandamus to compel the trial court to vacate temporary orders in a child custody modification
suit. Because the trial court failed to apply the law properly and Sanchez has no remedy by appeal, we
conditionally grant the relief requested.")

Tristan v. Castillo, No. 04-05-00658-CV (Tex.App.- San Antonio, March 14, 2007)

Corpus Christi Court of Appeals

Banta v. Texas DFPS, No. 13-06-00548-CV (Tex.App.- Corpus Christi, July 26, 2007)

Casas v. Adriano, No. 13-06-00373-CV (Tex.App.- Corpus Christi, July 5, 2007)


Austin Court of Appeals

Kenda Kushner v. Stan Kushner, No. 03-06-00634-CV (Tex.App.- Austin, Mar. 7, 2008) (Opinion by Justice
Pemberton )(Mother's appeal of order awarding custody of child to paternal grandfather intervening under the
grandparent provisions of the Texas Family Code fails. Trial court did not err in refusing to strike petition in
intervention.)
("Kenda Kushner appeals the district court's judgment appointing her ex-husband's father, Stanley Kushner, as
sole managing conservator of her and her ex-husband's son, M.J.K. In a single issue, Kenda (1) argues that the
district court abused its discretion when it failed to strike Stanley's Petition in Intervention of Grandparent in Suit
Affecting the Child-Parent Relationship because Stanley failed to allege sufficient facts to satisfy the
requirements to intervene under section 102.004(b) of the Texas Family Code. See Tex. Fam. Code Ann. §
102.004(b) (West Supp. 2007). We overrule Kenda's issue and affirm the judgment of the district court. * * *
We affirm the district court's judgment appointing Stanley Kushner as sole managing conservator, and Phillip
and Kenda Kushner as possessory conservators, of the child M.J.K.")

Spencer v. Vaughn, No. 03-05-00077-CV (Tex.App.- Austin, March 6, 2008)(order granting grandparent access
affirmed)
("Appellants  [...] appeal from the trial court's orders, entered after a jury trial, granting appellees Noel Douglas
Vaughn and Catherine Gay Vaughn, Kippling Spencer's parents, access to their grandchildren M.N.Y. and
S.N.S. They argue that the grandparent visitation statute then in effect is unconstitutional on its face and as
applied to them. They further argue that it was an abuse of discretion to modify M.N.Y.'s conservatorship and to
award $100,000 in attorney's fees. We affirm the trial court's orders.")

Texarkana Court of Appeals

In re M.A.H., No. 06-06-00081-CV 224 SW3d 838 (Tex.App.- Texarkana, May 16, 2007)

In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007)


Waco Court of Appeals

In re K. A.J. , No. 10-07-00110-CV (Tex.App.- Waco, June 13, 2007)  
Grandparent & Nonparent in Family Court
Original SAPCR Actions and
Interventions in Pending Child Custody Proceedings