357 S.W.3d 396
Tex. App.2011Background
- Meghan Lewis and Jason Lewis are the child’s parents and joint managing conservators.
- Carrolls are Meghan’s parents and the child’s maternal grandparents seeking standing.
- Jason filed a third amended motion to modify; Carrolls filed an intervention seeking appointment as non-parent joint managing conservators.
- Meghan moved to strike the Carrolls’ intervention on July 8, 2011; trial court denied July 14, 2011.
- Meghan sought mandamus; the court stayed the underlying proceeding pending resolution.
- The issue is whether Carrolls have standing under Family Code 102.004(a)(2) when there are two joint managing conservators.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether grandparents have standing under 102.004(a)(2) when both parents are joint managing conservators | Meghan: consent of both managing conservators required | Carrolls: consent of one managing conservator suffices under 102.004(a)(2) | Consent of both parents required; Carrolls lack standing |
| Interpretation of the term 'the managing conservator' in 102.004(a)(2) | Meghan: 'the' implies one designated conservator | Carrolls: statute contemplates more than one managing conservator | 'The managing conservator' means the single controlling conservator when only one exists; with joint conservators, consent of both is required |
| Impact of precedent on standing when one parent consents | Meghan relies on J.W.L. and Russell | Carrolls rely on S.M.D. and other authority | Prevailing interpretation requires consent of both managing conservators; prior cases cited are distinguishable; Carrolls lack standing |
| Adequate remedy by appeal versus mandamus | Relator seeks mandamus to correct abuse now | Respondents argue appeal may be adequate | Meghan lacks adequate remedy by appeal; mandamus appropriate to correct clear abuse |
Key Cases Cited
- In re J.W.L., 291 S.W.3d 79 (Tex.App.-Fort Worth 2009) (standing to seek managing conservatorship under 'the managing conservator' provision when one of two consents)
- In re Russell, 321 S.W.3d 846 (Tex.App.-Fort Worth 2010) (standing and consent considerations for grandparents; distinguishes J.W.L.)
- In re S.M.D., 329 S.W.3d 8 (Tex.App.-San Antonio 2010) (grandparent standing under 102.004(a)(2); discusses 'both parents' provision and reliance on that language)
- Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (statutory interpretation—plain meaning governs unless absurd result)
- In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204 (Tex.2009) (abuse of discretion standard and mandamus considerations)