In the landmark case of Troxel v. Granville, the United States Supreme Court addressed what rights grandparents have to maintain a relationship with their grandchildren after their child has died and over the surviving parent's objection. 

After Troxel was handed down, the Texas Legislature enacted Texas Family Code §153.433 ("Possession of or Access to Grandchild") in an effort to comply with the United States Supreme Court's one clear holding in Troxel, namely that a "fit" parent has the right to decide whether a child's grandparents may have access to the child.The Texas Legislature took the "fitness" requirement in Troxel to mean that if Dad's rights have been terminated, Paternal Grandparents cannot force Mom to let them see the Child.  Likewise, if Mom's rights have been terminated, Maternal Grandparents cannot force Dad to let them see the Child.  This requirement of "privity" between Parent and Grandparent is not altogether different from the requirement of "privity" in the realm of contract law, and represents the desire of the Texas Legislature to limit the encroachment of parental rights. 

Texas law is harder to apply when neither of the child's parents has had their parental rights terminated.  In this situation, the grandparents seeking access to the child must prove by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being and, in doing so, overcome the presumption that the parents are acting in the child's best interests by opposing the grandparent access.  The grandparents must also prove that their son or daughter (remember the privity concept here) (1) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition for grandparent access, (2) has been found by a court to be incompetent, (3) is dead or (4) does not have actual or court-ordered possession of or access to the child.  Only one of these additional requirements must be met, although many of them are often implicated in a grandparent access case.  It doesn’t take a rocket scientist to figure out that it's awful hard for grandparents to get access to their grandchildren when the grandparents are not on good terms with the child's parents. 

Faced with these barriers to grandparent access, maternal grandparents (for purposes of illustration) may consider forming alliances with the child's father.  Consider the example of a situation where the mother and father have divorced, and, since the divorce, the maternal grandparents have taken care of the child while her parents are at work.  All goes well until the maternal grandmother questions the judgment of the child's mother on some matter, at which point the mother tells the grandmother to take a hike, and cuts both maternal grandparents out of the child's life.  About this same time, the child's father – who is alive, unincarcerated, competent and active in the child's life – loses his job and falls behind in child support.  The mother takes this an opportunity to use contempt proceedings (for failure to pay child support) as a tasteless bargaining chip to terminate his parental rights.  Fearing that they might forever lose access to their grandchild, the maternal grandparents jump in and pay off the father's child support arrearage, and pay for an attorney to represent the father in the suit to terminate the father's parental rights.  The father, grateful for this help, promises to let the maternal grandparents see the child during the father's periods of possession.  The mother learns of this arrangement when her parents pay off the father's back child support, and amends her petition to drop the request to terminate the father's parental rights (knowing that the request won't fly now that the father has an attorney), to seek an increase in child support and to prevent the father from allowing the maternal grandparents to see the child. 

What I've highlighted by this scenario may be viewed as a backdoor to grandparent access by the maternal grandparent when it is not otherwise available, and an attempt by the mother of the child to close that door.  Before discussing this any further, it is important to note that the attorney hired by the maternal grandparents to represent the father is duty- and ethically bound to represent the father's rights, and not the rights of the maternal grandparents.  With that said, however, it is (or should be, in this advocate's view) indisputable that the father has the natural right to permit his child to visit with his extended family.  Nevertheless, I was thoroughly surprised to find out that at least one Collin County District Court judge disagrees with me. 

As you've probably gathered by now, I recently represented a father in a case with facts that are in some instances very similar to the ones in the hypothetical that I have been discussing in this blog entry.  The judge in this case saw fit to enjoin the father who I represented from allowing his child to be in the presence of the child's maternal grandmother and great-grandmother.  The judge thought that it was "sleazy" for me to represent the maternal grandmother and great-grandmother in a case where I was supposed to be representing the rights of the father, which I maintain that I was doing by fighting an attempt by a spiteful mother to restrict the rights of the child's father.  More to the point, it surprised me that the judge would openly question my sense of ethics in this case where his order prevents something that §153.433 does not.  In my view, this judge violated my client's parental rights in a manner that is inconsistent with Troxel and §153.433 simply because the judge didn’t like the alliance between my client and the child's maternal grandmother and great-grandmother.   

The point in all of this is not to condemn the judge (who by my own account is a good judge), but to point out that one litigant's view of a tactic as creative might be viewed by a judge as disingenuous.  There are other things to consider here, most notably the rules of ethics that require the consent of a client to accept payment of fees by a third-party, and the potential need of an attorney to obtain a waiver of potential and specified conflicts of interest from the client and the person who is paying the client's bills.  

Related and Unrelated Notes:

In the case of In re: Derzapf, 2007 Tex. LEXIS 270, 50 Tex. Sup. 563 (2007), the Texas Supreme Court addressed the testimony at trial of an expert psychologist who testified that cutting off grandparent access could be "harmful" to one of the children, and that it was in at least one of the children's best interests that this child have some contact with the grandparents.  The Court recognized that the children might be saddened by not seeing their grandparents, but concluded that such feelings fell short of a "significant emotional impairment." By focusing on the word "significant," the Derzapf Court concluded that there had been no showing that depriving the children of grandparent access would significantly impair the children's physical health or emotional well-being.

There is no right of accelerated appeal from a court order granting or denying grandparent possession or access.  On the other hand, however, Derzapf shows us that mandamus relief is appropriate in cases where a trial court has ordered grandparent access. The Derzapf Court formalized the availability of mandamus relief to a parent when a parent has been divested of a right by a trial court that awarded a grandparent access to or possession of a child.  More to the point, the Derzapf Court held that:

"The temporary orders here divest a fit parent of possession of his children, in violation of Troxel's cardinal principle and without overcoming the statutory presumption that the father is acting in his children's best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate."

In other words, the Derzapf Court made clear its view that "grandparents' rights are generally subordinate to a parent's."