Texas Appeals Court Reverses Dismissal of Grandmother’s Petition for Visitation

Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild.  The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts.  The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control.  The law presumes that a fit parent acts in their children’s best interest.  Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being.  The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child.  Rolle v. Hardy.  Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent.  A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born.  His mother then petitioned for grandparent possession of or access to the child shortly after the birth.  The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child.  She claimed denying her access to the child would significantly impair his health and well-being.

The mother moved to dismiss the lawsuit on the ground the mother did not have standing.  She argued that the grandmother did not have any personal knowledge she was an unfit parent and that the allegations were based on hearsay. The trial court granted the motion and the grandmother appealed.

The Appeal

The grandmother’s affidavit alleged that the mother continued “popping pills,” drinking, and smoking marijuana while pregnant with the child.  The grandmother also alleged the mother admitted she smoked marijuana when she was eight months pregnant. She further alleged that denying her access would significantly impair the child’s health or well-being.

The appeals court concluded the grandmother had alleged specific identifiable behavior that would significantly impair the child’s health or well-being, if true.  The appeals court noted that “recent past misconduct can be an indicator of future misconduct. . .”  The mother’s alleged drug use when she was eight months pregnant was recent at the time the grandmother filed her petition.  The appeals court concluded the grandmother’s allegations showed the mother’s behavior might cause significant impairment.

The mother argued the affidavit was conclusory and was not specific. She argued the grandmother did not offer any details about what kind of pills she took, how often, or how they were detrimental.  The grandmother also did not provide specific details around her allegations of marijuana and alcohol use.

The appeals court rejected the mother’s argument the grandmother’s statements were conclusory, determining the grandmother’s allegations of drug abuse were statements of rebuttable fact and not an inference.  Although the allegations did not include specific details, the appeals court concluded that details are not necessary to understand that significant impairment can result from the use of drugs and alcohol in pregnancy.  Considering the allegations in a light most favorable to the grandmother, the appeals court determined it could infer the alleged drug and alcohol abuse might continue in the future.  Those allegations, if true, could support a finding that denial of the grandmother’s request could significantly impair the child’s health or well-being.

The appeals court concluded the facts alleged in the grandmother’s affidavit supported her claim that denying her possession or access would significantly impair the child’s health or well-being and would support granting her possession or access, if true.  The appeals court reversed the dismissal of the grandmother’s suit and remanded the case.  The appeals court pointed out that it was not determining whether the grandmother would prevail on the merits, but was only deciding that she had standing.

Contact an Experienced Family Law Attorney

Grandparents must meet certain requirements for standing to seek visitation or custody of their grandchild. Although it can be difficult for a grandparent to achieve standing to pursue custody or visitation, the grandmother in this case made allegations that were sufficient to confer standing.  If you are considering pursuing custody or visitation of your grandchild, an experienced Texas grandparents’ rights lawyer can advise you of your options. Schedule a consultation with McClure Law Group by calling 214.692.8200.



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