THIRD PARTY CUSTODY: WHERE ARE WE AND WHERE ARE WE GOING (A VIEW FROM DOWN SOUTH AND A PEAK AT THE NATION)

Source: http://www.aaml.org/New_Articles/November%2003%20meeting/Gagnon%2011-03.htm

STEWART W. GAGNON

Fulbright & Jaworski L.L.P.

1301 McKinney, Suite 5100

Houston, Texas 77010-3095

(713) 651-5151

(713) 651-5246 (facsimile)

sgagnon@fulbright.com

American Academy of Matrimonial Lawyers

2003 Annual Meeting

November 5-8, 2003

Chicago, Illinois

THIRD PARTY CUSTODY: WHERE ARE WE GOING (A VIEW FROM DOWN SOUTH AND A PEAK AT THE NATION)

I. Introduction

We experience change at an alarmingly fast rate in our American society today. From transportation, to medical research, to technological advances, we are surrounded by a rapidly transforming society. One area of society that has experienced such a metamorphosis is that of the family.

What constitutes a "family" today? How would one define a "family"? Sixty years ago, we might have responded with a definition including only a mother, a father, siblings, and maybe grandparents. Today, however, while that definition may apply to some families, it does not for the majority in this country.

As we enter the 21^st Century, "family" encompasses a wide variety of individuals, from stepparents and grandparents, to gay and lesbian partners, to common law spouses and beyond. And while the law has begun to adapt itself to accommodate the modified infrastructure of the modern day family, it has not completely caught up. Therefore, questions concerning the rights of third parties in custody and visitation cases are constantly arising in the Family court system.

The Texas Family Code, in Section 71.003, defines who is included within the legally recognized definition of the "family". It says, " “Family” includes individuals related by consanguinity or affinity,...individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.” (Tex. Fam. Code Ann. §71.003 (Sampson and Tindall Aug. 2002)). This is a seemingly thorough definition given, however, it does not cover all individuals that some families consider to be a true part of their immediate family, and therefore, it does not address all who may petition the family courts for access or possession of a child.

The demographic changes over the past century have made it impossible to speak of the “American family” in generic terms. An “average American family” does not really exist anymore. The composition of families will greatly vary from household to household these days. What happens when a gay or lesbian partner sues for custody or visitation of a child with whom they have no consanguinity, but who they helped raise from birth and is known as a father or a mother to the child? What about grandparents of a stepparent to a child, who sue for visitation with their step-grandchild after the child's stepparent and parent divorce? Should these individuals have standing to petition the courts for visitation?

With the U.S. Supreme Court decision of Troxel v. Granville in 2000, the legal scope of a “family” seemed to narrow a bit. But how much did it truly narrow? How did it affect third parties petitioning the courts for a right of access or right of specific possession? Did it really affect the fate of third parties other than grandparents? How much is still left unanswered by the court and where is the law going with respect to third party rights? These are all important issues and will be discussed within this article.

II. WHAT DOES “IN THE BEST INTEREST OF THE CHILD” ACTUALLY MEAN?

Almost all laws regarding child welfare or child custody and visitation state that decisions shall be made in “the best interests of the child”.. What exactly does this mean? How does one truly deduce and define this phrase? One would assume that this simply means what will be most beneficial to the child; what will promote positive growth in their social, cognitive, and emotional facets of life.

The Texas Family Code does not include a definition of the phrase “best interest of the child”. It seems to be fairly ambiguous in its true meaning and is definitely subject to judicial interpretation. However, one case gives a nicely compiled list of many of the factors that the Courts use when determining the best interests of a child. In Holley v. Adams, a termination of parental rights case, the court provides a fairly detailed list of factors used. “An extended number of factors have been considered by the courts in ascertaining the best interest of the child. Included among these are the following: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or the proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.” (544 S.W.2d 367, *372).

The larger issue within this phrase is the question of who makes such a choice concerning the best interests of a child? Is the judge to decide what is in the best interests of the child? The parent or parents? Both? Who is best equipped to make such a decision'.' Who is legally entitled to participate in these decisions?

One asking this question would most likely encounter a number of differing opinions. Some will feel that the judge is best equipped to make a decision concerning the child's best interest , as he or she is a neutral person and has listened patiently and impassionately to all the facts concerning the situation. Others will feel that parents know their children best and should therefore be allowed to make such decisions. Still some will feel that it should not be either one or the other, but a consensus between both the parent or parents involved and the judge.

The law is fairly clear on this debate however. Since the United States Supreme Court handed down its decision in Troxel v. Granville (530 U.S. 57), in 2000, a more definitive answer has been given regarding “the best interest of the child”, who has the right to make such a decision, and the scope of parental rights. Troxel revealed the key component in how it is decided who shall have decision-making rights. The decision states clearly that a “fit” parent retains the right to submit his or her input regarding what would be in the best interests of the child to the judge, who in turn must give some weight to such input. Therefore, the decision becomes a joint venture between the parent and the judge. However, if the parent is deemed unfit, the decision- making process does not appear to follow the same path. The decision seems to say that only a fit parent retains such decision-making rights.

So, one might ask, what exactly are parent's rights within child custody and visitation proceedings? When is a parent deemed to be “fit” or “unfit” and how do their rights change according to their court-defined status?

III. WHAT ARE PARENT'S RIGHTS?

As determined by Troxel v. Granville, a parent has a fundamental right to “make decisions concerning the care, custody, and control of their children”, (530 U.S. 57, 2060), without interference of the court system as long as they remain fit in the eyes of the law. A fit parent cares for his or her child mentally, physically, and emotionally. They are able to provide for the child by giving the child a stable home environment conducive to physical and mental maturation. If a parent is indeed found to be fit, from where does their fundamental right to raise their children come?

The Constitution of the United States, through its Fourteenth Amendment and the Due Process Clause, guarantees every citizen's right to “life, liberty, and property”.. Throughout the years, the United States Supreme Court has declared the right to “liberty” to encompass the right for a parent to raise his or her child without governmental interference.

The liberty interest in this case - the right of parents in the care, custody, and control of their children- is one of the oldest known liberties in the United States court system. Over 75 years ago, the Court held that the liberty protected by the Due Process Clause encompasses the right of parents to “establish a home and bring up children” in Meyer v. Nebraska. (262 U.S. 390, 399, 67 L. Ed. 1042, 43 S.Ct. 625 (1923)). Two years after Meyer, the Court again addressed the issue of child rearing in Pierce v. Society of Sisters, when they held that the “liberty of parents and guardians includes the right to direct the upbringing and education of their own.” (268 U.S.510, 534-535, 69 L. Ed. 1070, 45 S.Ct. 571 (1925)). In 1944, the Court again returned to the subject in Prince v. Massachusetts. They again declared that the right of parents to direct the upbringing of their children was a fundamental, constitutionally-based right. The Court stated, “it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” (Prince, 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438 (1944)). There have even been more cases since the aforementioned cases in which the United States Supreme Court has again certified the fundamental constitutional right of parents to raise their children as they see appropriate.

The standard of review if the court does decide to intervene in parental upbringing is that of strict scrutiny and will not be exercised unless it is deemed that the parent is “unfit”; that is placing the child in harm's way, or creating an incapacity to care for the child or children properly. Unless the state can prove a compelling interest for its need to intervene on the child's behalf, a “fit” parent will enjoy the right to control and care for their own child and prepare him or her for adulthood according to their determinations of right and wrong, including to which persons their children are or are not exposed.

IV. TROXEL V. GRANVILLE

Tommie Granville and Brad Troxel lived together for a number of years and had two daughters together. They never married and eventually decided to split up in June 1991. Brad Troxel moved in with his parents, petitioners Jennifer and Gary Troxel. While living with his parents, he regularly brought his two daughters, Natalie and Isabelle, to the Troxel's home for weekend visitation. In May 1993, Brad Troxel committed suicide.

At first Tommie Granville allowed her children to continue to spend time with Brad's parents on a regular basis after the suicide. In October 1993, however, Ms. Granville informed the Troxels that she wanted to limit (not eliminate) their visits with Natalie and Isabelle to one visit per month. The Troxels then filed a petition for visitation rights with Isabelle and Natalie in the Washington Superior Court for Skagit County in December 1993. They filed petition under Washington statute 26.10.160(3), which provides: “Any person may petition the court for visitation rights at any time, including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child, whether or not there has been any change of circumstances.” (Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49, *2057 (2000)).

At the trial, the Troxels requested two weekends of overnight visitation per month and two weeks in the summer. Granville did not oppose visitation, but asked the court that it only order one day of visitation with no overnight stay per month. The Court entered a visitation decree which ordered visitation one weekend per month, one week during the summer, and four hours on both of the grandparent's birthdays. Tommie Granville appealed the court's ruling.

During the period of appeal, Granville married Kelly Wynn, who nine months later adopted both Natalie and Isabelle. By that time, the case had reached the Washington Court of Appeals, who had handed down a decision reversing the Troxels visitation decree, holding that non-parents lack standing to seek visitation under the statute unless a custody action was pending. (This conclusion by the court was drawn from the legislative history of the statute.) The appellate court found that such a petition for visitation “must be either contemporaneous with or preceded by a proceeding for child custody.” (Troxel v. Granville, 120 S.Ct. 2054, at 2058 (2000). Because there was no child custody action to allow the grandparent's visitation petition, the Court found the trial court's order for visitation to be in direct violation of the rules and reversed the order.

The Court of Appeals also held that the limitation on non-parental visitation was consistent with the fundamental liberty interest of parents in the interest of the care, custody, and control of their children. The Court, however, did not pass on Granville's constitutional challenge to the visitation statute and the Washington Supreme Court granted the Troxel's petition for review.

After reviewing the case, the Washington Supreme Court affirmed the judgment of the Washington Court of Appeals. They disagreed with the Court of Appeals' ruling on the statutory language of the statute and ruled that the Troxel's did in fact have standing under the plain language of the statute. However, the Washington Supreme Court did agree with the final judgment, that the Troxels did not have a right to visitation with Natalie and Isabelle pursuant to §26.10.160(3). Their decision was based upon the Federal Constitution, claiming that §26.10.160(3) unconstitutionally infringed upon Tommie Granville's fundamental right, pursuant to the Due Process Clause, to make child-rearing decisions concerning her children. The Court declared that the “Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child. Section 26.10.160(3) fails that standard because it requires no threshold showing of harm. Second, by allowing any person to petition for forced visitation of a child at any time with the only requirement being that the visitation serve the best interest of the child, the Washington visitation statute sweeps too broadly.” (Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49, *2058-59 (2000)). The Washington Supreme Court went on to state that when the decision of whom the children should be exposed to arises, the parents, not the judges are better equipped to make such decisions. Finding that the statute impermissibly violated the parent's constitutional right to make decisions concerning with whom the child or children will have contact, the Court declared the statute facially unconstitutional.

The Troxels again appealed and the United States Supreme Court granted certiorari and affirmed the judgment of the Washington Supreme Court. Justice O'Connor, joined by Chief Justice Rehnquist and Justices Ginsberg and Breyer, announced the judgment of the Court in a plurality opinion, in which Souter and Thomas concurred, each writing separate opinions. Justices Stevens, Scalia, and Kennedy each wrote separate dissenting opinions.

The Court found that the interest of parents in the control, custody, and care of the children is one of the oldest recognized liberties recognized by the Court. They agreed that the Washington visitation statute was “breathtakingly broad”. (Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49, *2061 (2000)). Furthermore, they found that the Washington statute provided for no deference to be given to the parent's decision of what would or would not be in the child's best interest. Overall, the Court stated that, “in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests.” (Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed. 2d 49, *2061 (2000)). Under the statute the judge's decision prevailed, even if a “fit” parent disagreed with the estimation of the judge regarding what he or she thought to be in the best interest of the child. This the court found, was contrary to the defined fundamental liberty of parents to raise their children without governmental interference as long as he or she adequately cares for his or her children.

The Washington statute, as written, had actually put the burden on Granville to disprove that visitation would be in the best interest of Natalie and Isabelle. The Court realized that this was an unfair burden, which effectively underhanded the constitutionally protected fundamental right parents enjoyed in raising their children.

Justice Souter, in his concurring opinion, agrees emphatically with the Court that the Washington statute in question is exceedingly broad and facially unconstitutional. He also notes that by allowing the Washington statute to continue in use would effectively undermine the fundamental right of parents to chose with whom their children associate. He claims that it would be “anomalous to subject a parent to any individual judge's choice of a child's associates from out of the general population merely because the judge might think himself more enlightened than the child's parent.” (Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, 2067 (2000).

Justice Thomas, who also writes a separate concurring opinion, states that while he agrees with the plurality opinion, he thinks it strange that they did not address the standard of review that should be used in such a case. Due to the fact that this case deals with an infringement of fundamental rights, the standard of strict scrutiny should apply. If such a standard had been applied by the Court, it would be noted that, “the State of Washington lacks even a legitimate governmental interest- to say nothing of a compelling one- in second- guessing a fit parent's decision regarding visitation with third parties” (Troxel at 2068). He further stipulates that on this basis he would have affirmed the decision of the Washington Supreme Court.

The three dissents, separately written by Justices Stevens, Scalia, and Kennedy made some interesting points. Justice Stevens maintains that the Washington State Supreme Court erred in its federal constitutional analysis because the Washington statute had a “plainly legitimate sweep”, and so therefore it could not be found facially unconstitutional. The fact that the statute allowed “any person” to petition for visitation without a finding of harm to the child, does not make it insufficient in all its applications. Stevens states that the plain language of the statute does not run afoul of the Fourteenth Amendment, as it “plainly sweeps in a great deal of the permissible”- i.e. individuals petitioning the court that could have at one time been a custodial caregiver. (Troxel at 2070). He continues on to point out that children's liberty interests, although never having been clearly defined within the Courts, play a special role in that while the parents may have a special interest in preserving intimate relationships with certain third parties, so too, do some children and this must be accounted for within the courts. Therefore, Stevens sees an apparent boundary drawn across parental presumption granted through the Due Process Clause, and a need for judicial interference to some extent. With reference to this case Stevens states that he would have sent it back to the trial court for further examination.

Justice Scalia seems to touch upon the notion of children's liberties as well in his dissent. He claims that because the respondent is asserting a due process right to raise her children as she sees fit only on her behalf and not the behalf of her children and their fundamental rights to freedom of association and free exercise, he can not consider when the parent has the right to exercise the above mentioned enumerated right.

Justice Kennedy simply seems to believe that Troxel should have not even gone to the United States Supreme Court, but should have been left in the state court system. The Washington State statute can be appropriately dealt with in the state. He would vacate the judgment and remand the case for further proceedings.

However diverse in their opinions, the United States Supreme Court, in their decision, reiterates the importance of parental involvement in the child's care and control, as well as the high level of scrutiny which the court must pay to any visitation dispute that arises with regard to third parties and the child's natural, fit parent.

However, as clear as they may have been on these two issues, they did not address whether the Due Process Clause requires all non-parental visitation statutes to include a showing of actual or potential harm to the child, as a condition precedent to granting visitation for the third party. This lack of clarity on that issue has left many feeling a little uneasy about the true scope of the Court's decision and how to apply it to their state laws. Texas, as well as several other states, has experienced this first hand itself.

V. ACCESS VS. POSSESSION: WHAT IS THE
DIFFERENCE BETWEEN THEM?

What are the differences between access to and possession of a child, as awarded by the courts to third parties within a lawsuit? As outlined by the Court in Gonzalez v. Graydon, an individual with rights of “access to” a child, has the right to have contact and communication with the child. They may visit with them, but they may not take possession or control of the child or children away from the custodial parent. On the other hand, an individual with the rights of “possession of” a child or children, may exercise possession and control of them, to the exclusion of all other individuals, including the custodial parent, during specific periods of possession. (28 S.W.3d 825, 831(Tex. App.-Corpus Christi 2000, no pet.).

VI. THE TEXAS GRANDPARENT STATUTE,
TROXEL, AND THE EFFECT UPON
ACCESS TO GRANDCHILDREN

After Troxel was decided by the United States Supreme Court in 2000, many states began to look at their statutes concerning third party visitation and try to align them with what the Court had stated in Troxel. Some states changed theirs and others are still trying to work through the true meaning of Troxel and how it relates to their third party visitation statutes and the cases with which they are currently deciding. Texas is one state in which there has been considerable debate over the meaning of Troxel and the impact it has had on its grandparent and third party statutes and pending cases. Since the Troxel decision there have been four main cases in Texas that have dealt directly with third party visitation rights. All four are slightly different and there have been varying outcomes in each. A review of the Texas grandparent and third party statute as well as these four important cases is needed to further the discussion of the importance of Troxel and the impact it has truly had and most likely will have in the future.

§ 153.433. Possession of and Access to Grandchild

The court shall order reasonable access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one
biological or adoptive parent of the child has not
had that parent's parental rights terminated; and

(2) access is in the best interest of the child, and at
least one of the following facts is present:

(A) the grandparent requesting access to the child
is a parent of a parent of the child and that
parent of the child has been incarcerated in
jail or prison during the three-month period
preceding the filing of the petition or has
been found by a court to be incompetent or is
dead;

(B) the parents of the child are divorced or have
been living apart for the three-month period
preceding the filing of the petition or a suit
for the dissolution of the parents' marriage is
pending;

(C) the child has been abused or neglected by a
parent of the child;

(D) the child has been adjudicated to be a child in
need of supervision or a delinquent child
under Title 3;

(E) the grandparent requesting access to the child
is the parent of a person whose parent-child
relationship with the child has been
terminated by court order; or

(F) the child has resided with the grandparent
requesting access to the child for at least six
months within the 24-month period
preceding the filing of the petition.

§153.433 seems to sound binding in its language when it states that the “court shall order reasonable access to a grandchild by a grandparent.” (Tex. Fam. Code Ann. §153.433 (Sampson and Tindall Aug. 2002)), but in reality this simply is not the case. Due to the fact that the order continues on to depend on whether or not the visitation with the grandparent is in the best interests of the child, the court retains judicial discretion on the matter and shall appear to be not binding in its meaning.

Troxel seems to work with Texas' statute in that it is not overbroad, as there are three requirements that must be met before the court will order visitation, and judicial discretion is still present. Troxel did, however, reinforce the notion that a “fit” parent has influence in the decision concerning what is in the best interest of the child as well, adding another dimension to who has discretion in the decision process of what is in the child's best interest. The four important post-Trace/ cases in Texas give different analyses of how the court interpreted and applied Troxel.

A. In re Aubin, 29 S.W.3d 199 (Tex.App.-
Beaumont 2000, original proceeding).

The Aubin case involved a custody dispute between a mother and an unrelated third party couple. Petitioners had filed suit for custody over the mother's objections, feeling that they could raise the child better than the mother. While the court did not dismiss the petitioner's case in full, they did overturn orders by the lower court that had granted temporary possessory conservatorship (rights and visitation) to Petitioners over the mother's repeated objections. The court stated that in light of Troxel, in which the court had directly addressed such an issue of third party visitation, the lower court had abused its discretion in ordering such visitation when it was in direct violation with the mother's request for no visitation. Ms. Aubin had not been declared an “unfit” parent by any means and discretion had to be given to her input of what constituted action in the best interests of her children. And in keeping with the Court's declaration that, “so long as a parent adequately cares for his or her children (i.e. is fit), there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.” (Granville v. Troxel, 530 U.S. 57, 102 S.Ct. 2054, 147 L.Ed. 2d 49, *2062 (2000)). Therefore, the state lacked a compelling interest to interfere with the rearing of Aubin's children.

B. Lilley v. Lilley, 43S.W.3d 703 (Tex.App.-Austin
2001, no pet.)

The facts in Lilley closely resemble those of Troxel. As in Troxel, the father of the child committed suicide and the paternal grandfather filed for visitation with his granddaughter. However, unlike Troxel, the parents in Lilley were married and were in the process of getting a divorce when he committed suicide. The grandfather did not allege that the mother was “unfit” and only sought court-ordered visitation with his grandchild. The Austin Court was able to distinguish the two cases in a surprising manner however and reach an entirely unexpected decision. The Austin court distinguished Lilley from Aubin on the bases that the couple were married in Lilley and not in Troxel, and furthermore, that in Lilley, the family had invited the government's interference into their lives when they had filed for divorce, whereas in Troxel, no such invitation had been extended. Furthermore, the Austin court did not find any of the testimony of the grandfather himself, his second wife, or his daughter concerning his long standing violent and manipulative nature to be of any real merit in its decision to allow visitation with the grandchild to occur. The court found that his counseling sessions since his son's suicide were sufficient to have rid him of such violent and abusive tendencies.

In addition, the Court seemed to make a big deal out of the mother's changing position regarding how much, if any visitation, should be given to the grandfather, despite the fact that the mother had stated that she had agreed to limited visitation within mediation proceedings previous to trial due to her knowledge that she could not afford to fight it out with the grandfather for an extended period of time. The mother was never alleged to be “unfit” and the court seemed to choose to not acknowledge certain elements of Troxel, such as parental decision making importance in the “best interests of their children” when deemed to be fit, or any of Aubin, which had been previously decided in the Texas Court system and directly pertained to Lilley. The holding in this case has been widely criticized.

C. Roby v. Adams, 08-00-00080-CV, 8^th Court of Appeals, El Paso, January 3, 2002

In Roby, the parents were married, and the case did not deal with divorce or suicide, but instead with the death of one parent and the maternal grandparent's request for visitation against the father's wishes. The mother had been diagnosed with breast cancer and after her diagnosis had chosen to not seek medical treatment due to religious beliefs. The father, Roby, alleged that his wife's parents had encouraged her not to seek medical treatment for her illness, but instead to rely on prayer for healing. He also alleged that the grandparents exhibited “strange” religiously- based behavior towards his children. He gave an example of walking in on the maternal grandmother trying to excise the demons out of one of his children when the child had been naughty. After his wife died, Roby decided to cut off all contact with her parents. The grandparents responded by filing for visitation with their grandchildren. There were character discrepancies as to all parties at the trial, as the grandparents claimed that Roby had an anger management problem. The court ended up granting unsupervised visitation with the grandparents and Roby appealed their decision. The grandparents stated that according to §153.433, they should have access because one parent was deceased and that visitation would be in the grandchildren's best interests. Mr. Roby held the position that the evidence the court had was not sufficient to overcome the fundamental right of parenting he enjoyed as a “fit” parent.

After the El Paso court reviewed Troxel, they concluded that there was no evidence that Roby was an “unfit” parent and therefore, he had a fundamental, constitutional right to make decisions concerning with whom his children spent time. Therefore, the Court denied the grandparents any access to the children, finding it was not in their best interests to have any contact with them against Roby's wishes. The Court specifically pointed to Troxel for its justification, stating that the “trial court must give special weight to the decisions of fit parents.” (Roby v. Adams, 2002 Tex.App. LEXIS 8 (Tex.App.-El Paso, Jan. 3,2002) at *12-13).

D. In the Interest of C.P.J. and S.B.J., 2003 WL 21783356 (Tex. App.-Dallas).

In 1999 the husband entered into an agreed order with his deceased wife’s parents whereby the grandparents had visitation rights with their grandchildren. In 2000, the husband filed a motion to modify claiming a change of circumstance as a result of the Supreme Court’s opinion in Troxel, thus the grandparents’ visitation rights should terminate. After the trial the court reduced the grandparents’ rights but did not terminate them. Husband appealed, claiming that since the grandparents neither plead or proved he was “unfit” allowing the grandparents to have any visitation with his children infringes upon his parental liberty interests in violation of Troxel. The Court of Appeals in affirming the trial court found that Troxel doesn’t make Texas’ grandparent visitation statute facially unconstitutional. The Court found the trial court did accord “some special weight to the parent’s determination” as required by Troxel when it reduced the grandparents’ time with the children even though it didn’t terminate those rights as requested by the husband.

Although the four cases discussed third party visitation, they seem to all have differing outcomes and varying positions on what Troxel has done to change the Texas grandparent visitation statute, a recurring theme can be found in that Troxel and Texas has set forth a heavy burden on grandparents desiring to gain access to their grandchildren to prove that visitation with the grandchildren, over the parent’s clear objections, would be in the child’s best interest. The focus has been taken off of the parent’s need to prove that visitation would not be in the child’s best interest and moved appropriately to the petitioner’s plea for visitation.

Almost across the board since Troxel, the courts have stated that in the cases before them now, the statutes will be considered unconstitutional if they continue to place the burden on the parents to prove why visitation would not be in the child’s best interest.

The Michigan Supreme Court recently declared its grandparent visitation statute unconstitutional because it did not give deference of any suit to a “fit” parent making decisions for their child. DeRose v. DeRose, No. 121246 (Michigan Supreme Court, July 31, 2003). On the other hand, both California and New Jersey have found their state’s grandparent visitation statutes even though they may allow court-ordered visitation over the objection of a “fit” parent. See: Fenn v. Sherriff, No. CO 41899 (Calif. Court of Appeals, 3^rd District, June 25, 2003) and Moriarty v. Bradt, No. A-145 (New Jersey Supreme Court, July 14, 2003). Strict scrutiny is applied in all third party visitation cases and the courts must now give deference to the parents decisions on how to raise their child unless the health or welfare of the child will be jeopardized by the parent’s choices.

There has been one other major change in the laws in Texas that works to a grandparents or third party’s advantage. In June of 2000, In the Interest of V.L.K. was decided by the Supreme Court of Texas, and declared that in a modification suit, the law of parental presumption does not apply. When V.L.K. was fourteen months old, his mother, Lee Ann Kilgore, shot and killed V.L.K.’s father. In August 1995, V.L.K. was staying with his paternal aunt and uncle, when Kilgore, filed an agreed decree appointing her mother, Jean Christiansen, V.L.K.’s managing conservator and designating herself possesory conservator. The paternal aunt and uncle with whom the child was living, filed a petition to modify conservatorship. They wished to be appointed joint managing conservators. The mother filed a cross-petition requesting sole managing conservatorship. The District Court entered an order appointing the mother as possessory conservator and the paternal aunt and uncle as managing conservators. The mother appealed this decision and the Court of Appeals reversed and remanded. The paternal aunt and uncle then filed a petition for review with the Supreme Court of Texas, which stated that the standard and burden of proof are different in original and modification suits, and “thus parental presumption, which applies in original proceedings, does not apply in modification proceedings”. (In the Interest of V.L.K., 24 S.W.3d 338, 340 (2000).

VII. Third Parties: Standing for custody petitions

Third party custody disputes are often governed under a separate statute. Such suits are governed by §102.003 and §102.004 in the Texas Family Code.

§102.003. General Standing to File Suit

(a) An original suit may be filed at any time by:

(1) a parent of the child;

(2) the child through a representative authorized by the court;

(3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;

(4) a guardian of the person or of the estate of the child;

(5) a governmental entity;

(6) an authorized agency;

(7) a licensed child placing agency;

(8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise;

(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;

(10) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162;

(11) a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition;

(12) a person who is the foster parent of a child placed by the Department of Protective and Regulatory Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition; or

(13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition.

(b) In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit.

§ 102.004. Standing for Grandparent

(a) In addition to the general standing to file suit provided by Section 102.003(13), a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child's present environment presents a serious question concerning the child's physical health or welfare; or

(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

(b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter.

(c) Access to a child by a grandparent is governed by the standards established by Chapter 153.

In order to file a custody suit, one must make sure that he or she has standing. Standing simply means that you have a recognizable legal interest in the issue within the court. A litigant who has a bonafide stake in the case and its subsequent outcome has standing to bring the case. The above statutes define who has standing to bring a custody dispute. A grandparent can acquire standing in one of two ways. First, a grandparent will have standing if they fall within §102.003(9), which states that “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”, qualifies. (Tex. Fam. Code Ann. §102.003(9) (Sampson and Tindall Aug. 2002)). If, however, this particular provision under §102.003 does not apply to them, than they can continue down the list until they reach §102.003(13), in which a grandparent may qualify for standing if he or she “is a relative of the child within the third degree by consanguinity, …if the child’s parents are deceased at the time of the filing of the petition.” (Tex. Fam. Code Ann. §102.003(13) (Sampson and Tindall Aug. 2002)).

§102.003 was originally enacted in 1973 and allowed for “any person with an interest in the child” to bring a suit. This similar language is still used in several states. As written, the courts seemed to deny access to many foster parents seeking remedy other than that sought through the state when a child has lived with the foster parents for a long period of time. Therefore, in 1997 the Texas Legislature attempted a resolution by granting foster parents the right to bring a suit if the child had resided within the home for a minimum of 18 months. There was still a looming question of whether or not this eliminated the foster parents’ right to bring suit under (a)(9), and this was dealt with by the legislature directly in 1999 by limiting the application of “actual care, control, and possession of a child” grounds for standing, to an individual “other than a foster parent”. Today, foster parents continue to have their own provision under (a)(12), which reduces the time for foster parents to acquire standing to petition the courts for custody, based upon their actual custody of the child from 18 months to 12 months.

Finally in 1999 subsection 13 was added and provided a very narrow provision, only applicable if the child’s parents were both deceased at the time of the filing of the petition. Under subsection 13, a person “within the third degree by consanguinity” has standing. Definitively, those included “within the third degree by consanguinity” are parents, grandparents, and great-grandparents, paternal and maternal uncles and aunts, and siblings.

Troxel did not address custody issues directly, as the case was purely concerned with visitation rights of third parties, namely grandparents. However, it did have impact on the scope of parent’s rights and the deference that must be given to a fit parent’s decisions concerning his or her child.

Furthermore, although Troxel really dealt only with grandparent rights, it still has had an impact on the scope of unrelated third party rights. Unrelated third parties can encompass such individuals as a same sex partner non-biological parent who sues for visitation or custody when he or she and their partner, who is the biological parent of the child in question, split up, or on the other hand, a couple who is friends with a family in which the parents either pass away or are deemed to be unfit, and they wish to file for custody with the children. Each situation will be different and so far the way courts are reaching their decisions are as well.

VIII. Gay or Lesbian Partners and Their Children: What Happens When They Split Up?

As previously acknowledged within this article, the family structure as society knows it to be is constantly changing.. These changes have been widely apparent with the addition of gay and lesbian partners raising children. In 1999, statistics showed that there were as many as 10 million homosexual adults raising children. (“Representing Gay and Lesbian Parents in Suits Affecting the Parent-Child Relationship” by Jennifer Tull, 25^th Annual Advanced Family Law Course, August, 1999). Custody and visitation suits can arise between homosexual partners in several different scenarios and all present new questions to the court concerning the rules as written in the family law today.

There are many different scenarios that could come into play when discussing conflicts of custody or visitation and children of gay or lesbian partners. The easiest and most clear cut within the eyes of the law occurs when a gay couple, who lives together, adopts and raises a child and they split up later down the line. Visitation and custody conflicts will be resolved within the same parameters of the law that a heterosexual married couple with children, would be. Although, a gay or lesbian couple’s marriage is not legally recognized in the State of Texas, both individuals adopted the child, and therefore each of them is considered a parent of the child or children and will be treated accordingly in a child visitation or custody dispute. However, the majority of situations are not as clear cut and courts do not always know how to handle the disputes before them.

Many courts still seem to be unfairly biased against homosexual partners in court proceedings. This is especially prevalent when a case arises in which a mother and father were married for many years and had children and then one of the parents decides to divorce the other and take up a homosexual lifestyle. Questions arise over whether or not it is prejudiced to allow evidence of a person’s sexual preferences when deciding what is in the child’s best interest with respect to visitation and/or custody with a homosexual parent. This can best be seen in two Texas cases. In the Interest of T.L.H., directly addressed the homosexuality of a parent. The trial court allowed in evidence of the mother’s homosexual acts. (630 S.W.2d 441 (Tex.App.-Corpus Christi 1982, writ dismissed). The Court permitted the husband’s new wife to testify as to what the child had said about the mother and her female friend and their alleged conduct. The Court found that the alleged homosexual acts of the mother may have affected the best interest and welfare of the child and declined to comment any further. This was also seen in Jenkins v. Jenkins, when the court overturned a father’s extended possession and visitation with his children due to his actions of involving his new homosexual partner in his children’s lives when they visited. Here too, the husband and wife had been married sixteen years when the husband divorced the wife and moved in with a homosexual partner. The court awarded the wife sole managing conservatorship and the husband extended possession and visitation. The wife appealed this and other issues and the court claimed that based upon the record of the husbands’ involvement of his new partner in the children’s lives, there was “no evidence in the record to support a finding that expanded visitation is in these children’s best interest.” (Jenkins v. Jenkins, 2001 WL 507221, 5 (Tex.App.-Dallas)).

There are ways for gay or lesbian partners to protect their rights as a parent. When discussing the rights of a non-biological parent, some measures may be taken in order to preserve a homosexual non-biological parent’s right to standing should problems arise later. When discussing lesbian partners who chose to have a child together via artificial insemination, in which one is the biological mother and the other is not, unless the two mothers enter into a court-ratified custody agreement, the non-biological mother may have no legal rights to the child. Some lesbian couples who have a child through artificial insemination will file a suit right after the child is born and then have an order entered that names both of them has joint custody of the child. Although this may not bestow parental status, it does however, give the non-biological parent the rights and duties of a conservator. This also does not cover families in which two lesbian women move in together and one already has a child, whom they raise together until problems arise years into the relationship.

For instance, a mother and her biological daughter live with the mother’s lesbian partner. Together they make a home and raise the little girl. The mother’s partner, however, at no time, makes any move to legally adopt the child. Years down the road, the couple splits up and the mother and the daughter move out and her ex-partner sues for visitation rights and/or custody of the child. What occurs in this situation, as the State of Texas does not recognize the gay or lesbian marriages and the child was never formerly adopted by the partner? One could look at §102.003(9) and claim that the language in the statute of, “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months, ending not more than 90 days preceding the date of the filling of the petition” may qualify for standing in a custody dispute, and ends the debate as to custody matters. (Tex. Fam. Code Ann. §102.003(9) (Sampson and Tindall Aug. 2002)). There have been two cases in Texas that have dealt with similar facts as outlined in the hypothetical above.

In Jones v. Fowler, decided in 1998, two women lived together and during the time of their cohabitation, one of them had a child via artificial insemination. They eventually split up, but the non-biological mother continued to have access to the child for short periods of time. However, in June 1995, the biological mother cut off all visitation between the child and the non-biological mother. The non-biological mother then sued for visitation under the provision §102.003(9), claiming she had had actual care and control of the child for at least six months. However, the Court concluded that she had not had actual care, control and custody of the child for the immediate six months prior to the filing of her petition, and therefore, she did not have standing to bring suit. (Jones v. Fowler, 969 S.W.2d 429, 430 (1998)).

Another case that was decided in 2003 had similar facts and a similar decision by the court. In Coons-Anderson v. Anderson, the court was asked whether Lisa Coons-Anderson had standing to sue for visitation with and custody of a child born to her long-time romantic partner, Juley Anderson. Appellee and appellant had begun their relationship in Florida in 1988, and while living together, appellee had had a child through artificial insemination. In October 1998, the relationship ended and the child moved with Juley to a different residence. Appellee allowed appellant periodic visitation until late 1999, when the appellee and the child moved to Texas. In June 2000, the appellant filed suit against the appellee claiming breach of contract with a suit as provided for under the Texas Family Code. The appellant argued she had standing pursuant to §102.003(9)of the Texas Family Code, because she had had “actual, care, control, and possession of the child for a period of six months, within 90 days of the filing of the petition.” The trial court found that appellant did not have standing pursuant to §102.003(9), as she had not had possession of the child since October 1998. Appellant appealed the judgment of the trial court and the court of appeals affirmed the judgment, stating that even though the appellant may have been in loco parentis to the child, she did not satisfy the clearly laid out guidelines within the statute of having had “actual care, control ,and custody of the child for at least six months at least 90 days preceding the filing of the petition”.. (Tex. Fam. Code Ann. §102.003(9) (Sampson and Tindall (Aug. 2000)).

Through both of these cases, it is obvious that the Court is stringent on fulfilling the requirements of the statute in order for an individual to have standing. It does seem that the court is stipulating that if one fulfills all requirements of the statute for standing, that even if he or she is a gay, non-parent suing for visitation or custody, he or she will have standing despite Texas’ non-recognition of gay and lesbian relationships.

However, a new issue arises. While the language seems to give the non-biological partner standing to sue for custody, couldn’t it be argued that the mother has had “actual care, control, and custody of the child” for just as long, and as long as the mother is fit, than that negates the time equated to the partner?

§102.003(9) does not say anything about exclusive “care, control, or custody” (Tex. Fam. Code Ann. (Sampson and Tindall Aug. 2002)), of the child. By the omission of the word “exclusive”, the legislature in effect, allowed for the person suing for managing conservatorship to have had joint or shared “care, custody, and control” of the child within the stated required time limits for standing to file suit. Therefore, it would seem in the scenario laid out above, that the mother’s ex-partner would be able to successfully establish standing to sue for custody of the child. Others may disagree, but it is a point argued effectively if looking at the plain language of the statute and what is not there, that would eliminate alternate readings such as the one taken above.

IX. Stepparents As Third Parties: What Rights Do They Have?

Third parties includes stepparents who might file for custody of a stepchild after the paternal or maternal parent dies, or for visitation when they split with the child’s parent. Stepparents generally won’t have any standing as they are not related to the child through consanguinity at all, but they could fit within §102.003(9), if they have had, “actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition,” or §102.003(11), if “a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” (Tex. Fam. Code Ann. §102.003(9)(11) (Sampson and Tindall Aug. 2002)).

Doncer v. Dickerson is a case involving a child and his stepmother, who had filed for possessory conservatorship after the child’s father passed away. ( 81 S.W.3d 349 (Tex. App.-El Paso [8^th District] 2002)). The stepmother, Doncer, maintained that pursuant to the joint conservatorship she and her husband had enjoyed, Mikey lived with them 51 percent of the time in even-numbered years and 48 percent in the odd-numbered years. This custody arrangement had been in place for three years and Doncer had been married to Ray for the entirety of that time. Dickerson, Mikey’s biological mother, argued that since Mikey’s primary residence was with her and because Mikey had never resided in Doncer’s home for a period of six consecutive months, that Doncer lacked standing despite §102.003(9). The trial court agreed with Dickerson and denied Doncer’s claim for lack of standing. The Appeals Court looked to §102.003(a)(11) that states, “a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.” (Tex. Fam. Code Ann. §102.003(a)(11) (Sampson and Tindall Aug. 2002)). They found that §102.003(a)(11) applies to a spouse of a deceased joint managing conservator where, as in this case, the child spent half of his time with the stepparent over the intended course of the two-year visitation cycle. Therefore, they concluded that Doncer had standing to bring her case.

Clearly under the Texas Family Code, Doncer fit within the parameters of those who qualified for standing to bring a petition for possessory conservatorship. Furthermore, when in the future, the Court does address the issue of whether or not Doncer will be granted possessory conservatorship, Troxel will not apply, as this is a modification proceeding. Previously, the father and stepmother had joint managing conservatorship of Mikey with the mother. When the father passed away, the stepmother brought suit to modify the existing order of possession. As discussed in a previous section, the Supreme Court of Texas ruled in In the Interest of V.L.K. in 2000, that in a modification proceeding, the parental presumption does not apply. ( 24 S.W.3d 338 (2000)).

Stepparents rights were not addressed directly within Troxel, so time will tell how the courts will choose to handle stepparent’s conservatorship or access rights cases. Will a stepparent who has raised the child for ten years have more rights than a stepparent who only lived with the child for two or three years? Will the parent the stepparent was married to have to be deceased for that stepparent to file a case for conservatorship of or access to the stepchild? The real impact of Troxel within this area will become more important over time if the Supreme Court later clarifies Troxel to greater lengths.

What the courts need to grasp is the fact that “psychological and sociological studies indicate that many stepparents and stepchildren form close, enduring relationships with one another”, and a child’s healthy growth depends upon the “continuity of his or her personal relationships.” (Stepparents’ Custody Rights When the Stepfamily Breaks Up” by Astrid Boos-Hersberger, American Journal of Family Law Vol. 12, No. 1, 248 (Spring 1998)). They need to look more towards the child’s “psychological parent”, or the parent who the child recognizes as fulfilling the parental role, instead of the biological parent. (Id at 249). The legal definition of what constitutes a “parent” should be amended to include the “psychological parent” characterization, as a true “parent” is the individual who actually cares for, spends time with, and nurtures the child through development. This may or may not always be the biological parent as many cases have shown.

X. Conclusion

There are still many issues that the courts have yet to address and this makes it difficult to provide clear cut rules to society concerning child custody and visitation proceedings. Each situation that arises provides the courts with an entirely new fact scenario and diverse family structures. However, over time there will be new issues upon which the courts or the legislatures will strive to definitively clarify.

In Troxel v. Granville, both Justice O’Connor, in the plurality opinion of the Court, and Justice Thomas in his concurring opinion, point out some issues found within the case that are not decided within the parameters of this case. (530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, (2000)). Thomas notes a couple arguments that were not presented by either side and which he finds that the “resolution of will be for another day.” (Troxel at 2068). He notes that neither party argued that the past substantive due process case were wrongly decided and that the original meaning of the Due Process Clause “precludes judicial enforcement of unenumerated rights under that constitutional provision.” Furthermore, he also discusses the possibility of a challenge based upon the Privileges and Immunities Clause. Justice O’Connor declares, that the central constitutional question passed on through the Washington Supreme Court, of whether the Due Process Clause requires all non-parental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation, will not be addressed by the Court. These questions and challenges to the scope of parental presumption are still left unanswered and it will be interesting to see what the Court decides when they do address them. Troxel was an important step in the litigation surrounding child visitation and custody proceedings in the United States, however, time will tell the true impact it has upon the laws and courts of individual states and this country.