in the Interest of B.R.S. and A.N.S., Children

166 S.W.3d 373, 2005 Tex. App. LEXIS 4113

• Court: Court of Appeals of Texas
• Decided: May 25, 2005
• Docket: 10-04-00110-CV
• Status: Published

Opinions

OPINION

BILL VANCE, Justice.

Lewis Seward and Carol Seward (Grandparents) sought to modify the parent-child relationship to seek court-ordered access to B.R.S. and A.N.S. Their November 2005 petition was opposed by both their son Jacob Seward and their former daughter-in-law Deanna Seward, who had divorced in October of 2002.

Without hearing evidence on'the merits of the Grandparents’ claim, the trial court found the grandparent visitation statute, sections 153.432 and 153.433 of the Family Code, unconstitutional and dismissed the claim. Tex. Fam.Code Ann. §§ 153.432, 153.433 (Vernon 2002). The Grandparents appeal.

The sole issue before us is whether the statute is facially unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We review the trial court’s finding under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982).

In 2001, the Austin Court of Appeals held that the statute is not unconstitutional on its face. Lilley v. Lilley, 43 S.W.3d 703, 712 (Tex.App.-Austin 2001, no pet.). Other courts of appeals have agreed with that holding.¹ In re C.P.J., 129 S.W.3d 573, 578 (TexApp.-Dallas 2003, pet. denied); In re Pensom, 126 S.W.3d 251, 254 (Tex.App.-San Antonio 2003, no pet.).

We join those courts in holding that the grandparent access statute is not unconstitutional on its face. Tex. Fam. Code Ann. §§ 153.432, 153.433. Thus, we hold the trial court abused its discretion in dismissing the claim by the Grandparents. See Gillespie, 644 S.W.2d at 451; Lilley, 43 S.W.3d at 712. We reverse the trial court’s dismissal order and remand the cause for further proceedings under the statute.

Chief Justice GRAY dissenting.

1 . We cite these cases only for the holding of facial constitutionality, not for their discussions of how the statute is to be applied.