In re Smith was a case out of Houston were pursuant to an agreed order in 2006, the paternal grandfather and his wife were appointed joint managing conservators of their grandchild. The mother and father were appointed possessory conservators and awarded limited access to the child. Because the suit originated as a CPS case, it was handled in a Harris Court juvenile court instead of the family district court.
After the order, the grandfather would occasionally allow the child to visit with the paternal grandmother who did not participate in the original proceedings. The grandfather eventually stopped these visits over concerns for the child. The paternal grandmother brought a suit to modify seeking grandparent access and requested temporary orders.
The grandfather filed a motion to dismiss asserting that the grandmother had no standing because she could not obtain relief under the Family Code because her son had court-ordered access to the child.
The motion to dismiss was granted. A de novo hearing was held with the presiding judge. The court of appeals was unwilling to extend the parental presumption to the grandfather who was basically functioning in the capacity of parent.