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Click here for the full text of this decision A constitutional application of the Grandparent Access Statute requires the trial court to find either that relator is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being. FACTS:Father was joint managing conservator, along with his ex-wife, of his two sons. Mother was ill for years before she died. During her illness, the boys lived with Grandmother (their mother’s mother). After mother died, grandmother and her husband filed a petition in a suit affecting the parent-child relationship to be named temporary sole managing conservators. Alternatively, they asked to be granted reasonable access to the children. The trial court ruled that grandmother be granted access to the children. Father filed for a writ of mandamus. He claims that under Troxel v. Granville, 530 U.S. 57 (2000), Family Code �153.433 (the “Grandparent Access Statute”) is unconstitutional. Alternatively, he argues that an order granting grandmother access must be premised on a prior finding that father is an unfit parent. HOLDING:Writ conditionally granted. The court reviews the Grandparent Access Statute, which provides a mechanism for the state to intervene in the basic exercise of this parental right, because the statute allows courts to determine whether parents will be required to turn their children over to the grandparents against the parents’ wishes. Because the statute implicates a fundamental right, the court applies a strict scrutiny standard of review to see if it is narrowly tailored to serve a compelling government interest. The statute allows grandparents to petition for access only under specific circumstances, chiefly when the family unit of parent and child has been disrupted, in recognition that it may be more traumatic to the child to cease access to the grandparents. Therefore, the state has a compelling interest in providing a forum for those grandparents who have a significant pre-existing relationship with their grandchildren. The court explains that Troxel did not discredit all non-parental visitation statutes. Instead, it focused more on whether the statute could be applied so as to protect the parents’ fundamental rights under the Due Process Clause. Also under Troxel, the trial court must accord significant weight to a fit parent’s decision about the third parties with whom his or her child should associate. The court thus agrees with father that a trial court must make a finding of parental unfitness before it can grant visitation to grandmother. “It is regrettable when the personal animosity of one or all of the parties serves only to deprive children of a relationship with their grandparents. It is even more regrettable here where the grandmother serves as an emotional link between the children and their recently deceased mother. However, for the reasons stated above, we conditionally grant the writ.” OPINION:Per curiam.

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