Due Process Necessary Before Temporary Orders for Grandparent Visitaion

In a per curiam decision, the Texas Supreme Court granted writ of mandamus to reverse a trial court's decision to grant temporary orders for grandparent visitation without hearing the custodial parent's evidence.
The case of In Re Chambless, No. 07-0767 (Tex. 2008), the Supreme Court reasoned that the custodial parent's due process rights were not afforded at the trial level when the trial court granted temporary orders for grandparent visitation without hearing evidence from the custodial parent pending final hearing on the merits.

Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-ordered visitation must overcome the presumption that a parent acts in the best interest of the child by proving by a preponderance of the evidence that denial of possession of or access would significantly impair the child’s physical health or emotional well-being. See § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).

In the case of Chambless, the custodial parent was not afforded to present her evidence before the trial court issued temporary orders for the grandparent visitation, thus not affording her due process rights as reasoned by the Texas highest court.

This case presents some logistical issues when petitioning for grandparent access. Most family law cases relating to suit affecting parent child relationship usually seek temporary orders prior to a final hearing on the merits. With this decision, the question then begs that no temporary orders could be issued by any lower court without affording all parties an evidentiary hearing.

To read the full decision, click here:


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