With today’s orders list, the Texas Supreme Court issued an opinion about the standing of grandparents to be included in trial court proceedings about child custody.
, No. 11-0155
The Texas Supreme Court originally denied review of this petition, but today the Court granted rehearing and issued a per curiam opinion.
The petition was brought by a child’s grandmother (Shook), with whom the child had lived during the years preceding a custody hearing between the child’s parents.
The trial court named the grandparent as the sole managing conservator. The court of appeals reversed, holding that the grandparent had failed to carry her heavy substantive burden of overcoming the presumption in favor of a parent having custody.
But one aspect of the court of appeals’s decision attracted attention: It remanded to the trial court with instructions that it revisit the question of custody as between the two parents only — excluding any possibility that the grandparent might (again) be given any level of custody.
That is the narrow issue on which the Texas Supreme Court reversed. The Court held that it was improper to exclude this grandparent from a future hearing:
Even assuming Shook previously failed to present evidence capable of overcoming the parental presumption, it does not follow that she will necessarily be unable to overcome the parental presumption under the present circumstances. …
The Court went on to distinguish between the substantive question of whether Shook had presented enough evidence in the earlier hearing and whether she should have standing to try again:
Shook’s inability to overcome the parental presumption [in the prior hearing] does not deprive her of standing to be considered for conservatorship or access. If Shook fails to overcome the presumption that a parent should be named managing conservator on remand, the trial court may still name Shook as a possessory conservator or grant her access if that would be in G.W.’s best interest.