June 21, 2013 by Aaron Tress

Grandparents’ Visitation Rights in Texas

Bill McNamara presented the following paper on April 22, 2009, before the South Plains Family Law Association.

“So & So Won’t Let Me See My Grandchild”

“Can You Help Me?”

I. Introduction

Under limited circumstances, there are ways we can still help Grandparents. This paper is an attempt to explain how we can still represent Grandparents in access cases in light of Troxel. If you are representing the parent, Troxel is still your sword.

This article is divided by questions you should ask and the facts Grandma gives you.

II. Grandma Calls and wants Access

Can you help? Answer: Maybe, Let me hear more!

A. First, and foremost: Determine if Grandma meets the “old” requirements. What I mean by this is whether one of the requirements under subparagraph (3) can be met:

the Grandparent’s child has been in Jail for at least the past 3 months
the Grandparent’s child has been found incompetent
the Grandparent’s child has died
the Grandparent’s child does not have court ordered access

Then you want to make sure that both parents have not had their rights terminated! See §153.434(1)(B). If both parents’ rights have been terminated, your Grandma is probably out of luck.

However, if both parents have had their rights terminated by CPS and Grandma has NOT been given access then you need to look at §102.003(a)(12) and §102.004! In a CPS case only, you have 90 days after the termination to still try and get Grandma in the door.

B. Second, ask Grandma questions about whether the parent is a fit parent or not. And ask Grandma questions to see if she would have standing under §102.003.

Sounds like a “Fit” parent and you don’t have any facts that could give you Standing under §102.003:

Result: Grandma still falls under §153.433 and she has to overcome the biggest hurdle.

Burden: Can you prove by a preponderance of the evidence that denial of possession of or access to the child (by Grandma) would significantly impair the child’s physical health or emotional well being?

Law: You better have an expert! In July of 2008 the Ft. Worth court of appeals stated, “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.” In re J.P.C., 261 S.W.3d 334, 340 (Tex. App.—Fort Worth 2008, no pet.).

Facts: The grandchild probably hasn’t seen an expert before Grandma calls. If Grandma has had close, loving, and/or a significant relationship with her grandkids, then I say file the access suit!

My Spin: Petition the court for temporary orders and ask the Court to appoint an expert to address the issue, but DON’T ask for “Temporary Access.” Also, you may want to ask the Court to confer with the child.

None of the cases that I have included have addressed the issue whether the appointment of an expert in a Grandparent access case offends the rationale in Troxel. You could rely on Derzapf where the trial court appointed an expert during temporary orders to advise the court whether the grandparents should have access. In re Derzapf, 219 S.W.3d 327, 328 (Tex. 2007). However, in Derzapf the Supreme Court of Texas held that only biological or adoptive grandparents, not step-grandparents, had standing to seek access.

Note: If you represent the parents you should argue that appointing an expert and subjecting your client and the kids to counseling offends Troxel.

C. Now assume these are the facts:

Parent is a fit parent, but Grandma HAS standing under §102.003.

PLEAD FOR JMC & ACCESS

Now you need to find out if there is a prior court order. If so, file a modification and argue that the parental presumption and Troxel does not apply! See In the Interest of M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.); In Re C.A.M.M., 243 S.W.3d 211 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). If you are representing the parent, however, rely on In re Kelso, 266 S.W.3d 586 (Tex. App.—Fort Worth 2008, no pet.).

If Grandma has standing under §102.003 she can file an original suit or a modification. If you are filing an original suit, then the parental presumption applies but you could still argue that Grandma has standing to be named a joint managing conservator. If Grandma has a “legitimate” threat of being named a JMC, then Grandma has more leverage to negotiate an access settlement.

Grandma would most likely have standing if the grandchild lived in her house for at least six months ending not more than 90 days preceding your filing. The six months doesn’t have to be continuous and uninterrupted. It just has to be the child’s principal residence.

D. Now assume the Parent is Unfit:

The child’s present circumstances would significantly impair the child’s physical health or emotional development

Your Grandma has standing under §102.004 to ask for custody, and in the alternative Grandma can plead for access. Again, this may lead the parties to negotiate a settlement regarding access.

III. Ancillary Issues

A. I was Home Towned!

I won’t name names, but I was in a county other than Lubbock, and I was representing the mother in a Grandparent access case.

At the first hearing I successfully argued that Grandma didn’t have standing under the statue. Then the father, who was in a court ordered rehab facility, filed an enforcement against my client (with the same attorney). He couldn’t leave the facility and couldn’t visit his child at the facility.

I thought no problem, right? Wrong. The judge ordered that the father could designate anyone he wanted to exercise his periods of possession, i.e. Grandma. I wasn’t prepared for this kind of judicial discretion.

If this happens to you, I think you should rely on In re Marriage of Campbell, 06-08-00088-CV, 2009 WL 483602 (Tex. App.—Texarkana Feb. 27, 2009, no pet.).

B. Can You Get out of a Pre-Troxel Grandparent Access Order?

Maybe – See In re C.P.J. The Texarkana court of appeals seems to say you may be able to get out of the agreement in light of Troxel.

No – See In re C.P.J., 129 S.W.3d 573 (Tex. App.—Dallas 2003, pet. denied). The Dallas court of appeals says you can’t get out of it even after Troxel.

No – See Spencer v. Vaughn, 03-05-00077-CV, 2008 WL 615443 (Tex. App.—Austin Mar. 6, 2008, pet. denied). The Austin court of appeals affirmed jury decision to modify grandparent access.

C. Specific Days & Times

Lastly, an Amarillo case says if Grandma does get access, then the trial court should give Grandma specific times and days in which to exercise her access. See In re Webster, 982 S.W.2d 526 (Tex. App.—Amarillo 1998, no pet.). Note: This opinion was issued before Troxel.

D. Step Parent Adoption doesn’t keep Grandma out

See Raines v. Sugg, 930 S.W.2d 912 (Tex. App.—Fort Worth 1996, no writ).

IV. Still Can’t Get There?

Sibling Access §153.551

Sibling has to be at least 18 §102.0045

Military Deployment §153.3161

Why do Grandparents with children in the military get more rights than other Grandparents? Equal protection argument?

V. Defending the Parent?

Rely on the following cases to defend your client’s constitutional rights!

In re Derzapf, 219 S.W.3d 327 (Tex. 2007)

In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006)

In re Chambless, 257 S.W.3d 698 (Tex. 2008)

In re J.P.C., 261 S.W.3d 334 (Tex. App.—Fort Worth 2008, no pet.)

In re D.R.D., 05-06-00666-CV, 2007 WL 2258455 (Tex. App.—Dallas Aug. 8, 2007, no pet.)

In re J.R.D., 05-06-01554-CV, 2007 WL 4415879 (Tex. App.—Dallas Dec. 19, 2007, no pet.)

In re Aubin, 29 S.W.3d 199 (Tex. App.—Beaumont 2000, no pet.)

June 18, 2013 by Aaron Tress

Hearsay Exception: Child’s Testimony

Involving children in custody and visitation disputes is a dilemma for attorneys. For example, during jury selection in a recent custody case, many of the potential jurors expressed concern at seeing a young child called to the witness stand. Although the jury would make a decision that would change the child’s life, some of the potential jurors thought that the harm to the child from being scrutinized on the witness stand might be too great. As a result, neither attorney called the child to the witness stand for fear of creating bad rapport with the jury.

Attorneys have alternatives to calling the child as a witness. These include making a prerecorded videotaped testimony of the child or calling the child’s counselor as a witness.

Prerecorded Videotaped Testimony of Child

Section 104.003 of the Texas Family Code states that testimony of the child may be videotaped and later shown at trial. For our post on videotaped testimonies, see here.

Hearsay Rule

To call the child’s counselor as a witness, one must overcome a hearsay objection. According to the Texas Rules of Evidence, hearsay is “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement.” The statement may be in writing, it may be oral, or it may be in the form of nonverbal conduct.

One common way to overcome the hearsay objection is to offer the statement for a purpose other than for the truth of the matter asserted. For example, the opposing counsel may bring up the point that the mother would tell people the father was addicted to drugs, inferring that the mother was doing so out of malice. To vindicate the mother, one may address medical records where doctors say the father ought to go to rehab. The opposing counsel will object to the medical records. However, as long as the medical records were introduced not to prove the truth of the matter asserted, but to show why the mother called the father a drug addict, the statements should enter into evidence.

Testimony of the Child’s Counselor

Excellent child counselors in Lubbock include

Section 803(4) of the Texas Rules of Evidence allows a child’s statements to enter into evidence through the child’s counselors. Like the hearsay example above, a counselor’s testimony should overcome a hearsay objection because the counselor’s words are not being used to prove the truth of the matter asserted but to describe the information the counselor relied on for treatment.

“As to the contention that Dr. Ohler’s testimony was hearsay and should not have been admitted, it is well settled that in child custody matters the trial court has a wide latitude of discretion in considering testimony and evidence, including opinion evidence of expert witnesses, which assists the court in deciding what conditions are detrimental or advantageous to the children for the purposes of deciding who should have custody of them.” Brown v. Brown, 500 S.W.2d 210, 213-14 (Tex. Civ. App.—Texarkana 1973, no writ).

Calderon v. Texas Dept. of Family & Protective Services, 03-09-00257-CV, 2010 WL 2330372 (Tex. App.—Austin June 11, 2010, no pet.) (admitting the child’s statements made during therapy that the child had seen a white powder on the table and had witnessed her parents acting “weird”).

October 29, 2012 by Aaron Tress

Custody Basics in Texas

“I want joint custody.”

This is a comment my clients initially make. Many parents wrongly believe that agreeing to joint custody will allow for equal sharing of children and reduce conflict at court. Unfortunately, designation as joint managing conservators is often not the end of conflict, but the beginning.

Because appointment as joint managing conservators is the default, disputes over custody do not revolve around joint and sole custody—as is commonly believed. Rather, disputes over custody revolve around which of the joint managing conservators receives the exclusive right to designate the primary residence of the child.

In 1995 the Texas Legislature changed the law requiring Judges to name both parents as “joint” conservators of their children.

However, Judges still have to grant one parent the exclusive right to designate the primary residence of the child. Custody battles typically center around this issue. Most custody battles are decided by a judge, but either parent can request that a jury decide who has the right to determine the child’s residence.

Q: What does Texas seek to accomplish through its custody laws?

A: The guiding consideration behind all of Texas’ custody laws is the best interest of the child. Because the “best interest” standard is incredibly broad, judges and juries have wide discretion concerning how to achieve the child’s best interest. That said, the Texas Family Code sets out criteria to help judges and juries determine the child’s best interests:

It is the Public Policy of Texas that a child should have regular contact with both parents.
Texas requires that the child’s environment be “safe, stable, and nonviolent.”
Texas encourages both parents to participate in raising their child.
Child support is independent from custody and visitation. That is, a child cannot be kept from a parent merely because the parent has not paid child support.

Q: What is a conservator?

A: “Conservator” is the legal title that designates the rights and duties a person has over a child. A conservator’s rights and duties are set out in the Texas Family Code. Although persons other than a parent can become a conservator, this article only addresses parent conservators.

Texas uses the term “conservatorship” rather than “custody” to emphasize the responsibilities and rights of parents rather than emphasize children as objects of property. This article, however, will use the terms interchangeably.

Q: Does Texas give preference to the mother or the father in determining custody?

A: No. Texas no longer presumes that the mother would make the better conservator. Today, judges should not consider the sex of the parents when determining conservatorship.

Q: Does the exclusive right to designate the primary residence of the child contain a geographical restriction?

A: Sometimes. Sometimes the conservator with this right is restricted to a geographical area, but sometimes the conservator with this right has no geographical restriction. If a court assigns a geographical restriction, the geographical restriction could be as small as a school district or as large as the United States.

One common reason the non-custodial parent may ask for a geographical restriction is to ensure that the child attends a particular school. Furthermore, the geographical restriction allows the non-custodial parent greater access to the child. On the other hand, a geographical restriction limits a custodial parent’s liberty. For example, a geographical restriction may affect the custodial parent’s ability to remarry, pursue a career, live near family, or allow the child to attend a different school. If the custodial parent wants to move and the court initially assigned a geographical restriction, the custodial parent must petition that the court modify the restriction. Judges and juries do their best to balance parents’ interests with the child’s best interest, but sometimes the interests of all the parties can’t be satisfied.

Q: Can a child choose which parent she wants to live with?

A: Yes (unless it is not in the child’s best interest). In 2009, the legislature repealed the section of the Texas Family Code permitting the child to file in writing the parent with whom she preferred to live. This section has been surrounded by controversy for years. The practice of filing in writing gave rise to the phenomenon known as “dueling affidavits” because each parent “assisted” the child to nominate their self.

Although courts no longer permit a child to file in writing the parent with whom the child prefers to live, a judge may interview the child in his chambers. Courts are not bound by the child’s wishes, but the interview does help the court determine the child’s best interest.