In Re BGD
351 S.W.3d 131
Tex. App.2011Background
- Ricky Derzapf, a single father, contested grandparent Connie Johnson's petition for visitation with his three children.
- Connie is Jennifer Derzapf's mother and the children's grandparent; Ricky had limited contact with Connie after earlier disputes.
- In 2003 Connie sought custody with Randy Johnson; a temporary restraining order was entered but later dissolved, and contact with Connie was curtailed.
- A 2005 temporary grandparent visitation order granted Johnsons visitation; Dr. Otis, court-appointed psychologist, supported staged visitation and questioned Connie's continued involvement.
- The Texas Supreme Court granted mandamus in 2007, holding Connie lacked standing and that denying Connie access alone did not meet the high impairment threshold; the case proceeded to trial on merits with updated expert testimony.
- The trial court ultimately awarded Connie grandparent visitation, but on appeal the court held Connie lacked standing to obtain visitation over Ricky's objection and that the trial court abused its discretion; the case was remanded for attorney's fees consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Connie's standing to seek visitation | Derzapf argues Connie lacks standing under 153.432. | Connie argues standing is established via 153.432 but must overcome 153.433 impairment. | Connie has standing under 153.432; issue rejected. |
| Whether the trial court abused its discretion under the law of the case | Derzapf contends law of the case requires denial of visitation. | Connie argues changed trial testimony supports visitation. | Trial court abused its discretion; visitation reversed. |
| Remand for attorney's fees | Derzapf seeks reconsideration of fees in light of outcome. | Connie opposes or limits fee recovery. | Remand to reconsider attorney's fees. |
Key Cases Cited
- In re J.M.T., 280 S.W.3d 490 (Tex.App.-Eastland 2009) (standing to seek grandparent access; requires 153.432 eligibility)
- In re Smith, 260 S.W.3d 568 (Tex.App.-Houston [14th Dist.] 2008) (standing for grandparent access under 153.432)
- In re Chambless, 257 S.W.3d 698 (Tex.2008) (abuse of discretion standard in grandparent access)
- In re Scheller, 325 S.W.3d 640 (Tex.2010) (trial court abuses discretion in grandparent access)
- In re Derzapf, 219 S.W.3d 327 (Tex.2007) (mandamus relief; standing; impairment standard)