                           ATTORNEYGENERALOFTEXAS
                                   GREG   ABBOTT

                                            October 13,2004



The Honorable Jeff Wentworth                     Opinion No. GA-0260
Chair, Senate Jurisprudence Committee
Texas State Senate                               Re: Constitutionalityofthe  Texas grandparent access
Post Office Box 12068                            statute, section 153.433, Family Code, in light of the
Austin, Texas 787 1 l-2068                       United States Supreme Court’s decision in Trod v.
                                                 Grunville, 530 U.S. 57 (2000) (RQ-0215-GA)


Dear Senator Wentworth:

        You ask about the constitutionality ofthe Texas grandparent access statute, section 153.433
of the Family Code, in light of the United States Supreme Court’s decision in Trawl v. Granville,
530 U.S. 57 (2000).

I.     The Statute

       Section 153.433 of the Family Code provides:

               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 haa been incarcerated in jail or
                       prison during the three-month period preceding the
                       tiling 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      tiling of the petition or a suit for the
                       dissolution     of the parents’ marriage is pending;
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                                (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 [ch. 5 1, Texas Family Code];

                                 (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 tiling of the
                        petition.

TEX. FAM. CODEANN. 5 153.433 (Vernon 2002) (footnote omitted).

       In 2000, the United States Supreme Court held a Washington grandparent access statute to
be unconstitutional on the ground that it contravened the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See Troxel v. Granville, 530 U.S. 57 (2000). The
Washington statute provided, in pertinent part, that

                [a]ny 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.

WASH. REV. CODE ANN. 5 26.10.160(3) (West 2004). You note that, although the Court’s holding
is limited to the application of the Washington statute to the facts of that case, the constitutionality
of the Texas statute is now in question. We begin with an analysis of Troxel v. Granville.

II.     Troxel v. Granville

          The Troxel case involved the application of a state statute to a dispute over grandparent
visitation rights. “Tommie Granville and Brad Troxel shared a relationship that ended in June 1991.
The two never married, but they had two daughters . .” Troxel, 530 U.S. at 60. After Tommie and
Brad separated, Brad lived with his parents and regularlybrought his daughters to his parents’ home
for weekend visitation. Brad committed suicide in May 1993, and although the Troxels initially
continued to see their granddaughters on a regular basis, Tommie informed the Troxels in October
1993 that she wished to limit the grandparents’ access to one short visit per month. See id. at 60-61.
The Troxels responded by filing suit in December 1993 to obtain extended visitation rights. At trial,
Tommie, rather than opposing all visitations, asked the court to order one day ofvisitationper month
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with no overnight stay. The Troxels requested two weekends of visitation per month and two weeks
each summer. See id. at 61. The trial court took a middle position, ordering one weekend visitation
per month, one week during the summer, and four hours on each ofthe grandparents’ birthdays. See
id. The trial court based its decision on the “best interest of the children.” Id. at 62.

         The intermediate appellate court reversed the trial court’s decision on the basis that the
Troxels lacked standing to seek visitation. See id. (citingln re Troxel, 940 P.2d 698,700-01 (Wash.
Ct. App. 1997)). The Supreme Court of Washington disagreed with the appellate court on the
standing issue, but held that under the federal constitution the Washington statute “unconstitutionally
infringes on the mndamental right ofparents to rear their children.” Id. at 63 (citing In re Smith, 969
P.2d 21,27-30 (Wash. 1998)). The United States Supreme Court granted certiorari, specifically to
determine whether the Washington visitation “violates the federal constitution.” Id. at 65.

         Justice O’Connor, in a plurality opinion joined by three other justices, first affirmed that
“[t]he liberty interest at issue in this case - the interest of parents in the care, custody, and control
of their children- is perhaps the oldest ofthe fundamental liberty interests recognized by this Court.”
Id. The opinion then reviewed the statute in question, noting in particular the following language,
which Justice O’Connor described as “breathtakingly broad”: “‘[alnyperson may petition the court
for visitation rights at any time,’ and the court may grant such visitation rights whenever ‘visitation
may serve the best interest ofthe child.“’ Id. at 67 (citing WASH. REV. CODEANN. 5 26.10.160(3)).
The opinion noted that this language

                effectively permits any third party seeking visitation to subject any
                decision by a parent concerning visitation of the parent’s children to
                state-court review. Once the visitation petition has been filed in court
                and the matter is placed before a judge, a parent’s decision that
                visitation would not be in the child’s best interest is accorded no
                deference. Section 26.10.160(3) contains no requirement that a court
                accord a parent’s decision any presumption of validity or any weight
                whatsoever. Instead, the Washington statute places the best-interest
                determination solely in the hands of the judge. Should the judge
                disagree with the parent’s estimation of the child’s best interests, the
               judge’s view necessarily prevails. Thus, in practical effect, in the
                State of Washington a court can disregard and overturn any decision
                by a tit 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. The Washington
                Supreme Court had the opportunity to give 5 26.10.160(3) a narrower
               reading, but it declined to do so.

Id.

         Justice O’Connor observed that “[tlhe problem here is not that the Washington Superior
Court intervened, but that when it did so, it gave no special weight at all to Granville’s determination
of her daughters’ best interests.” Id. at 69. Moreover, “the judge placed on Granville, the tit
custodial parent, the burden of disproving that visitation would be in the best interest of her
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daughters.” Id. As a result, “the court’s presumption failed to provide any protection for Granville’s
fundamental constitutional right to make decisions concerning the rearing of her own daughters.”
Id. at 69-70. Furthermore, the court observed, there existed no evidence that Tommie Granville
“ever sought to cut offvisitation entirely.” Id. at 71. The trial court “gave no weight to Granville’s
having assented to visitation even before the filing of any visitation petition or subsequent court
intervention.” Id.

         Justice O’Connor concluded that

               the combination ofthese factors demonstrates that the visitation order
               in this case was an unconstitutional       infringement on Granville’s
               fundamental right to make decisions concerning the care, custody,
               and control of her two daughters. The Washington Superior Court
               failed to accord the determination of Granville, a fit custodial parent,
               any material weight. In fact, the Superior Court made only two
               formal findings in support of its visitation order. First, the Troxels
               “are part of a large, central, loving family, all located in this area, and
               the [Troxels] can provide opportunities for the children in the area of
               cousins and music.“.        Second, “[tlhe children would be benefited
               from spending quality time with the [Troxels], provided that that time
               is balanced with time with the childrens’ [sic] nuclear family.”           .
               These slender findings, in combination with the court’s announced
               presumption in favor of grandparent visitation and its failure to
               accord significant weight to Granville’s already having offered
               meaningful visitation to the Troxels, show that this case involves
               nothing more than a simple disagreement between the Washington
               Superior Court and Granville concerning her children’s best interests.

Id. at 72. But the plurality added a caveat:

               Because we rest our decision on the sweeping breadth of $
               26.10.060(3) and the application of that broad, unlimited power in
               this case, we do not consider the primary constitutional question
               passed on by the Washington Supreme Court - whether the Due
               Process Clause requires all nonparental visitation statutes to include
               a showing of harm or potential harm to the child as a condition
               precedent to granting visitation. We do not, and need not, define
               today the precise scope of the parental due process right in the
               visitation context.     Because much state-court adjudication in this
               context occurs on a case-by-case basis, we would be hesitant to hold
               that specific nonparental visitation statutes violate the Due Process
               Clause as aper se matter.

Id. at 73.
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          The message of Troxel may thus be summarized: state statutes that infringe upon a parent’s
right to control the care and custody of his or her children are subject to strict scrutiny. See In re
Pensom, 126 S.W.3d 251, 254 (Tex. App.-San Antonio 2003, no pet.). A court may not, in
visitation cases, substitute its own judgment in such a way as to infringe upon this fundamental
liberty. The Washington statute is deficientper se on grounds of overbreadth, and its application
to the facts of Troxel indicate a deficiency in its overall structure. Nevertheless, while any particular
nonparental visitation statute may not as a matter of law violate the Fourteenth Amendment, the
ultimate determination of any visitation statute’s constitutionality requires a fact-intensive case-by-
case analysis.

III.    The Texas Cases

         At least seven Texas appellate cases since Troxel have addressed the constitutionality of
section 153.433 of the Family Code. None of them have concluded that that provision is facially
unconstitutional.

        A.      Clark v. Funk

                  The first decision, Clark v. Funk, No. 08-97-00634CV,      2000 WL 1203942 (Tex.
App.-El Paso Aug. 24, 2000, no pet.) (not designated for publication), was issued less than three
months after the Supreme Court’s decision in Troxel. Although Clark involved a conservatorship
battle, the trial court had ruled that, if the divorced parents were unable to agree about their rights
under the joint managing conservatorship, the paternal grandparents would make the final decision.
Id. at *3. The court, in referring to the recent Troxel decision, noted that

                [t]he Texas statute       . is, unlike the Washington visitation statute
                     very limited in its application and does not simply depend upon
                a best interest of the child finding       and again   . the record before
                us clearly reflects that the trial court’s order was based, not merely on
                its singular determination ofthe best-interest question, but was firmly
                grounded upon special factors that justify the imposition of a tie
                breaking role for the grandparents that imposes a limited restriction
                ofboth parents’ fimdamental right to make decisions concerning the
                raising of their children.

Id. at *4.

        B.     Lilley v. Lilley

                The next Texas case to reach the appellate level, Lilley v. Lilley, 43 S.W.3d 703 (Tex.
App.-Austin 2001, no pet.), involved facts remarkably similar to those of Troxel, in that the paternal
grandfather sought scheduled visitation with his granddaughter after the girl’s father had committed
suicide. Unlike the situation in Troxel, the Lilleys had been married but had subsequently divorced.
Like Tommie Granville, however, Wendy Lilley asserted that the trial court’s order granting access
to her former father-in-law infringed on her fundamental right to make child-rearing decisions. The
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trial court awarded visitation   rights to William Lilley, the paternal grandfather,    and the court of
appeals affirmed.

          The court of appeals first distinguished the Texas statute from the Washington statute held
invalid in Troxel. According to the court, section 153.433 of the Family Code is not, unlike the
Washington statute, “breathtakingly broad.” Id. at 712. Rather, it “allows only grandparents, under
particular circumstances, to petition for access to a child, provided it is in the child’s best interest.”
Id. Thus, section 153.433 is sufficiently distinguishable from the Washington statute that it cannot
be said to be unconstitutional on its face. Id. at 713. Furthermore, the court found, the statute had
not been unconstitutionally    applied to the facts at issue. The trial court, unlike the trial court in
Troxel, did not place on Wendy Lilley the burden of proving that her daughter would be harmed by
visitation with her grandfather. The Lilleys had themselves “sought the State’s intervention into
their family’s relationships when they tiled to dissolve their marriage.”            Id. at 712. Most
significantly, Wendy Lilley had, unlike Tommie Granville, “taken inconsistent positions” about the
grandfather’s access to her daughter. Id. at 713. The court of appeals concluded that “[tlhe district
court balanced Wendy’s varying positions and rights” as a mother with the grandfather’s “request
for visitation and the child’s interest in having a continuing relationship with her deceased father’s
family.” Id.

        C.      Sailor v. Phillips

                 In Sailor v. Phillips, No. 03-00-00725-CV, 2001 WL 1379923 (Tex. App.-Austin
Nov. 8,2001, no pet.) (not designated for publication), the court of appeals affirmed its holding in
LiZley that section 153.433 is facially constitutional, noting that it “defines certain circumstances
when grandparent [visitation] may be ordered if it is in the children’s best interest.” Id. at *4.
Moreover, the mother in Sailor had severed all contact between her children and her formermother-
in-law, even blocking “a final visit or even telephone contact with the boys’ terminally ill grandfather
when they were ages twelve and fourteen.” Id. at *5. Under these circumstances,             the court of
appeals affirmed the trial court’s order allowing the children to visit their grandmother.

        D.      Roby v. Adams

                 The fourth case, Roby v. Adams, 68 S.W.3d 822 (Tex. App.-El Paso 2002, pet.
denied), is one of only two post-Troxel Texas cases to deny visitation rights to grandparents. The
court did not reach the issue ofthe facial constitutionality of section 153.433. Rather, it emphasized
that portion of Troxel requiring that “special weight” be accorded a tit parent’s determination about
visitation. Id. at 827. On the basis of the facts presented at trial, the court of appeals found that the
trial court was not justified in “finding that granting grandparent access would be in the best interest
of the Roby children, against Roby’s decision as a parent.” Id. at 827. The court distinguished the
facts before it from those in Lilley, on the ground that

                Roby never declared it would be in the best interest of his children to
                allow the Adams[‘] access to the children and Robywas consistent in
                his position on the Adams’ access to them. Furthermore, the holding
                in Lilky appears to place the burden of persuasion upon the parent to
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               prove the best interest of the child. This goes against the presumption
               so strongly enunciated in Troxel, that a tit parent acts in the best
               interest of his or her child. A grandparent seeking access under TEX.
               FAM. CODE ANN. 5 153.433 has the burden to overcome the
               presumption that a tit parent acts in the best interest of the parent’s
               child in order to establish the “best interest of the child” prong of the
               statute.

Id. at 828. This language evidences a fundamental disagreement between the Austin and El Paso
Courts of Appeal on the application of the Troxel standard to section 153.433. Roby in no way,
however, questions the facial constitutionality of the Texas statute.

        E.     In re Marriage of Black

                 After an interval of more than a year, yet another Texas appellate court entered the
frayregarding Troxeland its application to Texas law. In In reMarriage ofBlack, No. 07-02-0317-
CV, 2003 WL 397799 (Tex. App.-Amarillo Feb. 21,2003, no pet.) (mem. op.), Crystal Dawn Black
appealed a trial court decision awarding, as part of a divorce decree, grandparent access to her child.
Ms. Black raised on appeal for the first time the issue of the constitutionality of section 153.433.
The court of appeals, although holding that the issue of constitutionality could not be raised for the
first time on appeal, approvingly quoted the court’s language in Lilley. See id. at *2.

        F.     In re C.P.J. and S.B.J.

               In the last two cases, both from 2003, the Dallas and San Antonio Courts of Appeal
have struck a balance between what might be considered the two approaches previously taken by
the Texas appellate courts: the embracing standard ofLiZZey and the narrower test applied in Roby.

          In the case ofln re C.P.J. andS.B.J., 129 S.W.3d 573 (Tex. App.-Dallas 2003, pet. denied),
Marshall Jackson had married Stephanie Adams in May 1989, a union that produced two daughters.
Stephanie died in October 1994, and until May 1997, Stephanie’s parents, Ronnie and Cheryl
Adams, cared for the children during the daytime hours while their father worked. Id. at 573-74.
In July 1997, the Adamses filed a petition for grandparent access, and after mediation, the parties
agreed on a schedule of regular visits, which schedule was approved by the trial court. In October
2000, Jackson filed a petition to modify the Adamses’ visitation order in light ofthe Troxeldecision.
In September 2002, the trial court denied Jackson’s request to terminate visitation, but modified the
visitation schedule to reduce the time the children spent with the Adamses. Jackson appealed, citing
Troxel for the proposition that section 153.433 is unconstitutional.   See id. at 576.

         The court’s analysis focused primarily on the argument that section 153.433 is
unconstitutional on its face. The court noted initially that the “holding in Troxel is clearly limited
to the application ofthe Washington statute to the facts ofthat case. Accordingly, we cannot apply
Troxel as a sweeping indictment of all non-parental visitation statutes in general or as to the Texas
statute in particular. Further, the United States Supreme Court expressly declined to define the
precise scope of the parental due process right in the visitation context.” Id. at 576-77. The court
then discussed the different approaches taken by the courts in Lilley and Roby:
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                 Several Texas courts have addressed the grandparent visitation statute
                 since the Troxel decision was delivered. However, no decision has
                 directly held that the statute is unconstitutional.     In Lilley v. Lilley,
                    .     the court held specifically that section 153.433 is “not
                 unconstitutional on its face or in the district court’s application to the
                 facts at hand.”         Differing somewhat with the Lilley holding, the
                 El Paso court of appeals, in Roby v. Adams               stated that it was
                 “[bleeding the holding in Troxel,” but it did not declare the statute to
                 be unconstitutional      either facially or as applied.         Instead, the
                 El Paso court engrafted upon the statute a presumption that the parent
                 is Iit, that a Iit parent is presumed to act in the best interests of the
                 child, and that without a finding ofparental unfitness, no grandparent
                 visitation can be allowed over the parent’s objection.

Id. at 577 (citations omitted).   The court then presented its own resolution       of these two cases:

                 Because these cases dealing with a challenge ofsection 153.433 were
                 narrowly decided under the facts before the respective courts, we
                 view them as describing a path under those facts. They are not
                 controlling in the case we now consider. However, we are mindful
                 that the court in Liliey resolved against the appellant an attack on the
                 facial constitutionality of the statute.

Id. at 577-78.

          In reconciling these varying standards with the case before it, the court of appeals first
declined “to take the position that the statute is facially unconstitutional.” Id. at 578. In applying
the Troxel standard to the circumstances presented, the court found that “there are at least several
pivotal facts which show that the trial court did not deny due process to Jackson respecting his
parental rights. First, Jackson agreed to the 1999 visitation order, which specifically found that
visitation was in the ‘best interests of the children.’        By reducing the visitation schedule and
excluding Sunday visitation, the trial court’s judgment plainly resolved any           conflict. Further,
Jackson testified that he was not refusing visitation by the Adamses.” Id. Finally, the court
concluded that “the relief ordered by the trial court respecting Jackson’s motion and the application
of the grandparent access statute to Jackson does not violate his due process rights as described in
Troxel. It is apparent that the trial court was able to craft its decision by according ‘at least some
special weight to the parent’s own determination.“’ Id. at 579.

        G.       In re Pensom

                The final Texas appellate decision thus far, In re Pensom, 126 S.W.3d 251 (Tex.
App.-San Antonio 2003, no pet.), issued less than a year ago, takes, like In re C. P.J., a balanced and
reflective approach to the question of the facial unconstitutionality    of section 153.433, and its
application to particular circumstances. In that case, Keith Pensom and his wife, Melanie, had been
divorced and granted joint managing conservatorship of their two children. After Melanie’s death,
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her mother and stepfather, Maria and James Weaver, tiled a petition to be appointed temporary sole
managing conservators, or alternatively, to be granted reasonable access to the children. The trial
court entered temporary orders granting access to Maria Weaver. Keith Pensom then tiled a
mandamus action, alleging first, that section 153.433 is unconstitutional        on its face, and, in the
alternative, that “the trial court abused its discretion in granting Maria access because it did not find
him to be an unfit parent.” Id. at 254.

        The court of appeals noted first that the parental interest in the care, custody, and control of
their children is “a fundamental right protected by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution,” and as a result, a “strict scrutiny” test must be
applied. Id. at 254. The court then summarized the Texas grandparent access statute as follows:

                         The Grandparent Access Statute allows grandparents to
                petition for access only under circumstances where the family unit has
                already, to some degree, been disrupted. A grandparent may request
                access ifthe parent is incarcerated, incompetent, or dead; the parents
                are divorced or living apart; the child is a delinquent or has been
                abused by its parents; the parent-child relationship        has been
                terminated with one parent; or the child has resided with the
                grandparents for a statutorily-required    length of time.      These
                provisions evidence the Legislature’s recognition that cessation of
                contact with a grandparent may have a dramatic, and even traumatic,
                effect upon the child’s well-being. Under such circumstances the
                State has a compelling interest in providing a forum for those
                grandparents having a significant existing relationship with their
                grandchildren.

Id. at 255 (citation and footnote omitted).   The court continued:

               Because the statute allows only grandparents to petition for access,
               the jurisdictional prerequisite of standing serves to ensure that the
               statutory scheme is narrowly tailored so that a parent’s personal
               affairs are not needlessly intruded upon or interrupted by the trauma
               of litigation by any third party seeking access. However, more than
               a narrow standing requirement is necessary to satisfy the due process
               concerns raised in Troxel.          [T]he Troxel court refused to define
               the precise scope of the parental due process right in the access
               context        . The Court did not issue a per se holding that non-
               parental visitation statutes violate the Due Process Clause. The
               underlying logic of abstaining from such a decision was that states,
               in ruling on the constitutionality of their own non-parental visitation
               statutes, have made these determinations in the past on a case-by-case
               basis             Accordingly,    the Grandparent Access Statute is
               constitutional if its application protects parents’ fundamental rights
               under the Due Process Clause. To achieve that goal, we construe the
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                Grandparent Access Statute narrowly and in a manner consistent
                with the constitutional principles stated in Troxel.

Id. at 255-56 (emphasis added) (citations and footnote omitted).

        The Pensom court thus reached the heart ofthe matter ofthe facial constitutionality of section
153.433: how to construe that provision in a manner consistent with Troxel. To do so, the court
required that section 153.433 be construed narrowly. The court then spelled out exactly how a
narrow construction of the statute would read:

               [ZJn order to satisjj the “best interest of the child” prong of the
               Grandparent Access Statute, a grandparent must overcome the
               presumption that a fit parent acts in the best interest of his or her
               child. To overcome this presumption, a grandparent has the burden
               to prove, by a preponderance of the evidence, either that the parent
               is not ftt, or that denial of access by the grandparent would
               significantly impair the child’s physical health or emotional well-
               being. Our holding that grandparents meet this burden is consistent
               with other provisions ofthe Family Code that require a higher degree
               of proof when a non-parent tiles a Suit Affecting the Parent-Child
               Relationship. When interpreted and applied in light of the framework
               established in Troxel, the Grandparent Access Statute is narrowly
               drawn to serve a compelling state interest and therefore is facially
               constitutional.

Id. at 256 (emphasis added) (footnotes omitted). In applying this standard to the facts at hand, the
court of appeals held that “a constitutional application of the Grandparent Access Statute requires
the trial court to find either that relator is not fit, or that denial of access by the grandparent would
significantly impair the child’s physical health or emotional well-being. Here, the trial court did not
make any such findings because, in granting access, it did not have the benefit of this court’s
guidance on applying the statute in light of Troxel.” See id. at 256-57. As a result, the court of
appeals set aside the trial court’s order granting Maria Weaver access to her two grandchildren.

IV.     Analvsis and Conclusion

         More than four years have elapsed since the United States Supreme Court’s decision in
Troxel. Seven intermediate Texas appellate courts have attempted to formulate a test for applying
the Troxel standard to section 153.433 of the Family Code. Each court that has considered the issue
has held that provision to be constitutional on its face. Like those courts, we must begin with the
presumption that the legislative enactment is constitutional. See Gen. Servs. Comm ‘n Y. Little-Tex
Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). A facial invalidation of a statute is
appropriate only if it can be shown that under no circumstances can the statute be constitutionally
applied. See United States v. Salerno, 481 U.S. 739,745 (1987). On the basis ofthis presumption
ofconstitutionality,  the holding of these Texas appellate cases, and on the clearly limiting language
of Troxel, we conclude that section 153.433 is facially constitutional.
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         The Texas appellate cases have traced an arc from the relative permissiveness ofLilley to the
strict standard of Roby and on to the more subtle analyses of In re C.P.J. and In re Pensom. Each
of these decisions was of course circumscribed by its particular facts, but in our view, the latter two
cases, and especially In re Pensom, reflect a reasoned and thoughtful attempt to harmonize section
153.433 of the Family Code with the Supreme Court’s standard in Troxel. Thus, while section
153.433 is facially constitutional, it may, under particular circumstances, be unconstitutionally
applied. In order to avoid an unconstitutional      application of the statute, a court must require a
grandparent to “overcome the presumption that a tit parent acts in the best interest of his or her
child.” In re Pensom, 126 S.W.3d at 256. To overcome the presumption, “a grandparent has the
burden to prove, by a preponderance of the evidence, either that the parent is not tit, or that denial
of access by the grandparent would significantly impair the child’s physical health or emotional well-
being.” Id. Such an approach has the virtue both of adopting the test of the most recent Texas
appellate case on the matter in question, and of most closely complying with the caveats imposed
by Troxel. Weconcludetherefore     that section 153.433 is facially constitutional, but is constitutional
in application only if construed in light of the limitations imposed by Troxel.
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                                        SUMMARY

                          Section 153.433 of the Family Code, the Texas
                 Grandparent Access Statute, is constitutional on its face. It may
                 be constitutionally     applied, however, only in light of the
                 limitations imposed by Troxel v. Granville, 530 U.S. 57 (2000).
                 In order to avoid an unconstitutional application of the statute, a
                 court must require a grandparent to “overcome the presumption
                 that a fit parent acts in the best interest ofhis or her child.” In re
                 Pensom, 126 S.W.3d 251,256 (Tex. App.-San Antonio 2003, no
                ‘pet.). To overcome the presumption, “a grandparent has the
                 burden to prove, by a preponderance of the evidence, either that
                 the parent is not tit, or that denial of access by the grandparent
                 would significantly       impair the child’s physical health or
                 emotional well-being.” Id. at 256.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
