STANDING: Grandparent must have standing to bring suit for access to grandchild under Texas Family Code

Standing refers to the legal right to bring an action in court. In the case of grandparents, the requirements for standing to file a suit affecting the parent-child relationship, or to intervene in a pending suit involving child custody or visitation, are defined by statute, specifically the Texas Family Court.

Texas courts of appeals have addressed standing in grandparents rights cases as follows:

Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives the trial court of subject matter jurisdiction, and renders any trial court action void. Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 455 (Tex. App.- Houston [14th Dist.] 2002, no pet.). Whether a party has standing is a threshold issue, and one which we review de novo. See In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.- San Antonio 2004, no pet.); Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App. Houston [1st Dist.] 2006, pet. denied). When standing has been conferred by statute, the statute itself should serve as the proper framework for a standing analysis. In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.- Houston [14th Dist.] 2005, orig. proceeding [mand. denied]).
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The Family Code provides that a biological or adoptive grandparent may request access to a grandchild. See Tex. Fam. Code Ann. ' 153.432. As the child's biological grandmother, Lisa meets this standing requirement. The Smiths contend, however, that section 153.433 imposes additional conditions for standing. The plain statutory language does not support this interpretation. Sections 153.432 and 153.434[4] expressly speak in terms of when a grandparent "may request" or "may not request" access or possession, and therefore address the right to file an access suit. See Tex. Fam. Code Ann. '' 153.432, 153.434. By contrast, section 153.433 outlines when "[t]he court shall order" possession or access. See id. ' 153.433.
Not surprisingly, Texas courts consistently have held that a grandparent's standing to request access is conferred by section 153.432, not 153.433: "Section 153.432 of the family code does give grandparents standing to petition the court for access to or possession of a child. Section 153.433 identifies the conditions under which such possession or access will be granted." In re H.M.J.H., 209 S.W.3d 320, 322 (Tex. App.- Dallas 2006, no pet).[5] Although a successful access suit might require the grandparent to satisfy section 153.433, whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit. See generally In re C.M.C., 192 S.W.3d 866, 869-70 (Tex. App.- Texarkana 2006, no pet.) ("[A] decision concerning whether a party has standing is not a decision deciding the merits of a case."); In re SSJ-J, 153 S.W.3d at 138 ("[S]tanding does not mean the right to win; it is only a right to be heard.").
In re Kevin J. Smith, No. 14-08-00164-CV , ___ S.W.3d ___ (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost) (SAPCR, grandparent access mandamus denied, standing requirement for access satisfied)


Standing is a threshold issue and must be decided before the merits of the case. In re K.I.A., 205 S.W.3d 14 (Tex. App.--Eastland 2006, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex. App.--Tyler 1993, no pet.).

When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Daimler Chrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex. App.--Corpus Christi 2003, no pet.); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.--Fort Worth 2005, no pet.); see Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Standing to pursue the action, in this context, is provided by statute. Watts is not a party given standing to pursue the action. Thus, the trial court correctly dismissed his suit on that basis. In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit motion for visitation had no standing, basis to bring lawsuit and file motions; frivolous suit finding, sanctions imposed)


[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. In re S.L.M., No. 04-07-00566-CV (Tex.App.- San Antonio June 18, 2008) nonparent standing, sibling visitation)

SAN ANTONIO Appeals involving Grandparents

San Antonio Court of Appeals

Decisions in civil cases involving grandparents as parties and other cases involving grandparents, grandchildren, and nonparents seeking access, visitation, or custody of child

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, no pet.)(grandmother as temporary possessory conservator, parental presumption)

in re Ray Ellison Grandchildren Trust, No. 04-06-00704-CV (Tex.App.- San Antonio, April 2, 2008, pet. filed) (probate law, construction of the word descendants, adoption of adult vs. child, legislative history of adoption statue)

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)