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Gray's Interesting Cases for May, 2006

Updated and presented by David Gray
  1. In the Interest of Z. A. T., et al, No. 10-04-00347-CV, not yet published (CA, Waco).

    Sound familiar? It should as I reported on this case two months ago. However on rehearing, Justice Reyna changed his vote so he wrote the new lead opinion with Justice Gray writing a concurring rather than a dissenting opinion. The previous majority writer, Justice Vance, is now the dissenting opinion. The bulk of the case turned on the issue of how to force minor kids to attend trial. The answer is: There are no special provisions for service of trial subpoenas on minors – you serve the kids just like they are adults if you want them to appear for trial.

    Comment – Well, I’m glad we have at least one definitive opinion on this point. What I really like is the cat fight that is apparently going on in Waco as evidenced by the following verbatim footnote by Chief Justice Gray. Meow!

  2. In re: Mayo-Hooper, No. 04-1040, not yet published (Tex. Sup. Ct.)

    A child was born during the marriage of H & W. The parties divorced in 2000 & H died in 2003. Conflicts arose between W and her ex mother-in-law (MIL) relating to MIL’s visitation with the child. MIL filed suit for grandparent visitation. W defended on the basis that §153.432, et seq. was unconstitutional per Troxel (530 U.S. 57). The T/C found the F/C provisions were constitutional and granted MIL fairly extensive possession of the child. W appeals.

    The Supremes, in a per curiam opinion, held that as there was no proof that: (1) W was unfit or (2) the child’s health or emotional well being would suffer by abiding by W’s wishes or (3) W intended to completely exclude MIL’s access to the child, under these facts, §153.432, et seq. were unconstitutional. The Supremes refused to rule on the constitutionality of the 2005 amendment to §153.433 which added the requirement that grandparents must overcome the presumption that a parent acts in the best interest of the child by proving that denial of possession/access will significantly impair the child’s physical health or emotional well-being.

    Comment– Here we go again. I’m not sure the wording of the new amendment to §153.433 is the same as the Supreme’s wording of (2) above. If you’re in a trial on this issue, I’d prove all three elements mentioned by the Supremes plus the new element of §153.433(2).

  3. Beyers v. Roberts, No. 01-04-00619-CV, not yet published (CA, Houston- 1st).

    H & W divorced in ‘98 with H having custody of the kids. In ‘02 H filed a modification motion requesting c/s, etc. W filed a c/c requesting custody. In mediation the parties signed an irrevocable agreement per §153.0071 by which each was a JMC of the kids with W’s visitation increased; however, neither party had the right to designate the kids’ primary residence except such would be restricted to Harris County. H later objected to the entry of a judgment based on the MSA because §153.133 says that T/C can only designate JMC if one of the JMC’s has the right to set the primary residence of the kids. H also requested the T/C to hold a hearing to determine if the MSA was in the kids’ best interest per §153.007. The T/C entered the modification judgment without a best interest hearing. H appeals.

    Affirmed. Altho §153.33 requires one JMC to have the primary residence designation power, this is not applicable to MSA made in compliance with §153.0071.

    Comment – This is a poorly written and confusing opinion as it constantly switches references to the various F/C sections (and case law) which are not relevant to the contested issues. The opinion is also misleading as it purports to quote from the ‘05 amendment to §153.0071 to say a T/C, in its discretion, is allowed to conduct a best interest hearing on a §153.0071 MSA involving kids. Wrong! §153.0071(e-1) says a T/C may decline to enter judgment on an irrevocable MSA if the T/C finds: (1) a party to the MSA was victim of family violence and the circumstance impaired that party’s ability to make decisions and (2) the MSA is not in the kid’s best interest. The CA’s opinion kinda ignore the existence of (1).