Given that most of my lawyerly work involves child custody cases, from time to time I come across an interesting case that requires a little bit of commentary. And so, we have In re J.H. out of the El Paso Court of Appeals. Grandma seeks custody.
As a general rule, what you have to understand is – Grandma got nothing. Grandparents, as a general rule, have no say in their grandchild’s upbringing. But there are some exceptions and In re J.H. is one of those. J.H. was born to a couple of druggies who got caught in their madness and sentenced to the Feds. Spending three years on the tax payor dole. Because of the extended vacation, J.H. was being raised by Maternal Grandma. Dad got out of club fed, drove by Grandma’s house, took J.H, and did not return him. Then, because he is such a stellar guy, cut off all of Grandma’s access to J.H. Grandma files suit seeking sole managing conservator of the child.
At the trial level, Grandma was appointed a possessory conservator, not what she wanted but nevertheless a big win for Grandma because she is in the game. She has orders. Dad is pissed that Grandma is still in the game and appeals.
The appellate court in this case says everything it can say without actually calling both Dad and his lawyer – NITWIT.
You, Grandma sought conservatorship under Section 102.003 of the Texas Family Code. The statute that provides standing for custody. But Dad, in all the lawyer’s wisdom, complains to the appellate court that Grandma was provided access under Section 153.432 – the Grandparent Access statute. NO GUY – Grandmas was trying to get custody. She didn’t seek anything under the go look at the kid statute which is what Section 153.432 is.
Here is the rule: Grandma has standing to bring her case seeking custody because she had had actual care, control and possession of the child for at least six months ending not more than 90 days from the time she files suit.
For a Grandparent who wants custody of their grandchild, Section 102.003 of the Texas Family Code is the best way to get into the game.
Note also, Dad made some other complaints on technical grounds to the El Paso Court of Appeals. The Court said this:
In cases affecting the parent-child relationship, technical rules regarding pleading requirements do not carry the weight they do in a typical civil action. In re P.M.G., 405 S.W.3d 406, 417 (Tex.App.–Texarkana 2013, no pet.); see also Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967)(“Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children.”). This Court faced a similar argument in Green v. Green, where Appellant argued that the trial court could not deny him possessory conservatorship and visitation because Appellee’s pleadings only sought sole managing conservatorship and did not request he be denied possession or access. Green v. Green, 850 S.W.2d 809, 811 (Tex.App.–El Paso 1993, no pet.). In affirming the ruling, we held that “the paramount concern is the best interest of the child, and the niceties of the procedural rules of pleading will not be used to defeat that interest.” Id., at 812.
Bye Bye Birdie