Consideration of Grandmother to Protect Best Interest

381 S.W.3d 540

Supreme Court of Texas.

Ann Wood SHOOK, Petitioner,

v.

David GRAY, Respondent.

No. 11–0155.

Oct. 5, 2012.

Prior History: 

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS.

Core Terms

shake, trial court, appoint, custodial, court of appeals, sole management, conservatorship

Case Summary

Procedural Posture

The Court of Appeals for the Thirteenth District of Texas remanded a custody case to the trial court for hearings to determine the custody and visitations rights as between respondent father and real party in interest mother. Petitioner grandmother's motion for rehearing of her petition for review was granted.

Overview

The grandmother argued that the court of appeals should not have precluded the trial court from considering her role in the cihld's life on remand. The supreme court agreed. By foreclosing the trial court from considering the grandmother on remand, it may be unable to protect the child's best interest, Tex. Fam. Code Ann. § 153.002. The trial court had to consider the changed circumstances. Even assuming the grandmother previously failed to present evidence capable of overcoming the parental presumption, it did not follow that she would necessarily be unable to overcome the parental presumption under the present circumstances. The grandmother had established a general standing to file a suit for conservatorship and access, as someone who had had care, control, and possession of a child for the designated time, Tex. Fam. Code Ann. § 102.003.

Outcome

The judgment was reversed to the extent it limited the trial court's consideration of the role the grandmother should play in the child's life.

Synopsis

Background: Unwed father filed an original suit affecting the parent-child relationship, requesting that he and mother be appointed joint managing conservators and that mother be given the primary right to establish child's residence. Maternal grandmother intervened on the basis that she had actual care, control, and possession of child, and she requested that she and mother be appointed joint managing conservators. The District Court, Victoria County, Juergen Skipper Koetter, J., appointed grandmother as child's sole managing conservator and named father and mother as child's possessory conservators, and appeal was taken. The Court of Appeals, Corpus Christi, reversed and remanded, and grandmother appealed.

Holding: The Supreme Court held that, by preventing trial court from considering grandmother for conservatorship of or access to child, Court of Appeals unduly restricted trial court's ability to protect child's best interest.

Affirmed in part and reversed in part.

West Headnotes (2)Collapse West Headnotes

Change View

1Child Custody

Determination and disposition of cause

Court of Appeals erred when it directed trial court, on remand, to reconsider conservatorship and access rights between unwed father and mother only, and by preventing trial court from considering maternal grandmother, who had cared for child, for conservatorship of or access to child, Court of Appeals unduly restricted trial court's ability to protect child's best interest; child was now nine years old and over four years had passed since trial court issued its order, appointing grandmother as child's sole managing conservator and naming father and mother as child's possessory conservators, and even if grandmother had previously failed to overcome parental presumption, it did not follow that she would necessarily be unable to overcome parental presumption under the present circumstances. V.T.C.A., Family Code § 153.002.

3 Cases that cite this headnote

2Child Custody

Parties;  intervention

Child Custody

Presumption in favor of parent

Maternal grandmother pled and established general standing to file a suit for conservatorship and access, as someone who had care, control, and possession of child for the designated time, and grandmother's inability to overcome the parental presumption did not deprive her of standing to be considered for conservatorship or access, and if she failed to overcome the presumption that a parent should be named managing conservator on remand, the trial court could still name grandmother as a possessory conservator or grant her access if that would be in child's best interest. V.T.C.A., Family Code § 102.003.

Opinion

PER CURIAM.

G.W., David Gray and Lucy Wood's nine-year-old daughter, has lived with her maternal grandmother, Ann Shook, for her entire life.Although G.W.'s parents have been in and out of her life to varying degrees since she was born, no one disputes that at the time of the custody hearing the grandmother's home was the only home G.W. had ever known. We are asked to decide whether the court of appeals erred by remanding this case to the trial court for hearings to determine the custody and visitation rights as between Gray and Wood only. We grant Shook's motion for rehearing of her petition for review and, pursuant to Rule 59.1 of the Rules of Appellate Procedure, hold that, by barring the trial court from considering Shook, the court of appeals unduly restricted the trial court's ability to protect the child's best interest.

When G.W. was three-and-a-half years old, Gray filed an original suit affecting the parent-child relationship requesting that he and Wood be appointed joint managing conservators and that Wood be given the primary right to establish G.W.'s residence.1 Shook intervened on the basis that she “has had actual care, control, and possession of [G.W.] for more than 6 months ending no more than 90 days preceding *542 the date of filing of [the] petition.” See TEX. FAM.CODE § 102.003(a)(9). She requested that she and Wood be appointed joint managing conservators and that she be named the joint managing conservator with the exclusive right to designate G.W.'s primary residence. She also asked that Gray be appointed possessory conservator. Subsequently, Gray amended his petition to request that the trial court appoint him joint managing conservator with the exclusive right to establish G.W.'s residence. Gray did not specify who should be named the other joint managing conservator.

Shortly after G.W. was born, G.W. and her mother moved into Shook's home in Victoria, Texas. At the time of the custody hearing, when G.W. was almost five years old, G.W. still lived with Shook. Wood had moved out of Shook's home to live on her own two years earlier, and Gray had lived in Houston, New Jersey, Colorado, and Seattle between G.W.'s birth and the time of the custody hearing. The trial court appointed Shook as G.W.'s sole managing conservator and named Gray and Wood as G.W.'s possessory conservators.

The court of appeals reversed, holding that the trial court abused its discretion in naming Shook, a nonparent, as G.W.'s sole managing conservator because Shook failed to present any evidence that could overcome the presumption that a parent should be named as managing conservator. 329 S.W.3d at 198–99; TEX. FAM.CODE § 153.131 (stating that a parent shall be appointed as a sole managing conservator or both parents shall be appointed as joint managing conservators “unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development”). Additionally, the court of appeals remanded the case for the trial court to reconsider the conservatorship and access rights between Gray and Wood only and explained:

[T]he trial court held in Shook's favor, making it unnecessary for that court to determine G.W.'s best interest as it related to the custodial or visitation rights that should exist between Gray and [Wood] only. Because of this, and because we have overturned the trial court's ruling designating Shook as sole managing conservator, we find it to be in the interest of justice not to simply render judgment in Gray's favor. Further, more than a year has passed since the custodial hearing; circumstances may have changed during this time such that it would not be in G.W.'s best interest to appoint Gray as her sole managing conservator, and we have no ability to determine the present circumstances of any of the parties, nor do we have the luxury of sitting as a fact-finder. For the forgoing reasons, we remand this case to the trial court for custodial hearings to determine the rights as between Gray and [Wood] only.

329 S.W.3d at 199. Shook contends that the court of appeals should not have precluded the trial court from considering her role in G.W.'s life on remand. We agree.

1By foreclosing the trial court from considering Shook on remand, the trial court may be unable to protect G.W.'s best interest.TEX. FAM.CODE § 153.002 (“The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”). As the court of appeals pointed out, it had “no ability to determine the present circumstances of any of the parties, nor d[id it] have the luxury of sitting as a fact-finder.” Id. That statement illustrates the problem with remanding for custodial hearings between Gray and *543 Wood only. The trial court must be able to consider the changed circumstances. G.W. is now nine years old and over four years have passed since the trial court issued its order. Even assuming Shook previously failed to present evidence capable of overcoming the parental presumption, it does not follow that she will necessarily be unable to overcome the parental presumption under the present circumstances.

2Moreover, Shook pled and established general standing to file a suit for conservatorship and access, as someone who has had care, control, and possession of a child for the designated time. TEX. FAM.CODE § 102.003 (authorizing suit by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”). Shook's inability to overcome the parental presumption does not deprive her of standing to be considered for conservatorship or access. If Shook fails to overcome the presumption that a parent should be named managing conservator on remand, the trial court may still name Shook as a possessory conservator or grant her access if that would be in G.W.'s best interest.

Thus, we conclude that the court of appeals erred in preventing the trial court from considering Shook for conservatorship of or access to G.W. Accordingly, without hearing oral argument, we affirm the court of appeals' judgment remanding the case, but reverse to the extent the judgment limits the trial court's consideration of the role Shook should play in G.W.'s life, whether as conservator or a person with defined access rights. TEX.R.APP. P. 59.1.

Parallel Citations

56 Tex. Sup. Ct. J. 10

Footnotes

1

In his petition, Gray stated, “The best interest of [G.W.] will be served by the appointment of Lucy Wood as joint managing conservator with the exclusive right to designate the primary residence of the child, and [Gray] so requests.” Gray further requested that “appropriate orders be made for access to the child and the allocation of the rights and duties of the conservators.” Although Gray does not explicitly state the type of conservatorship he sought, we infer that he wished to be named a joint managing conservator.

Insufficient Evidence to Overcome Parental Presumption

325 S.W.3d 640

Supreme Court of Texas.

In re Richard SCHELLER, Relator.

No. 09–1072.

Nov. 5, 2010.Rehearing Denied Dec. 10, 2010.

Subsequent History: Rehearing denied by, Stay denied by In re Scheller, 2010 Tex. LEXIS 969 (Tex., Dec. 10, 2010)

Prior History: In re Scheller, 2009 Tex. App. LEXIS 10070 (Tex. App. Austin, Dec. 23, 2009)

Core Terms

trial court, appointment, best interests of the child, temporary order, grandparent, psychologist, girls, emotional, physical health, constitutional right, guardian ad litem, mandamus relief, well-being, temporary, impair, recommendations, grandchildren, infringe, make a recommendation, per curiam, parent-child, counseling, daughters, litem

Case Summary

Procedural Posture

Relator father sought mandamus relief concerning respondent trial court's orders for temporary access to and possession of his children under Tex. Fam. Code Ann. § 153.433 in favor of real party in interest grandfather. The father also challenged the trial court's appointment of an expert to serve as guardian ad litem to the children and as a psychologist to evaluate the case and make recommendations.

Overview

The children's mother passed away in 2007. Later, the grandfather sought access and filed suit. The trial court issued temporary orders for the grandfather's access to and possession of the children. The father originally sought mandamus relief in the appellate court, which was ultimately denied. The father again sought mandamus relief in the court, which was conditionally granted. The trial court abused its discretion in awarding a grandfather access because he failed to meet his burden. Nothing showed anything more substantial than the children's sadness resulting from losing their mother, and the father had taken responsible measures to ensure that the children were able to cope with their grief. The trial court's appointment of an expert did not infringe on a father's rights for purposes of Tex. Fam. Code Ann. § 105.001. The appointment was allowed by law under Tex. R. Civ. P. 204.4(a) and Tex. Fam. Code Ann. § 107.021(a)(3), (b)(2) and no conflict existed between appointing the evaluating psychologist under Tex. Fam. Code Ann. § 107.001(5)(B), (5)(C) as guardian ad litem. The father was entitled to conditional mandamus relief as to the access orders only.

Outcome

The court conditionally granted mandamus relief and directed the trial court to vacate its temporary order for access and possession. The writ was to issue only if the trial court did not comply. The trial court did not err in appointing the expert.

Background: Father sought mandamus relief, challenging order of the trial court granting maternal grandfather temporary access to and possession of children. The Court of Appeals, 2009 WL 5215332, denied relief. Father filed petition for writ of mandamus in the Supreme Court.

Holdings: The Supreme Court held that:

1 grandfather failed to establish that denial of access to his grandchildren would significantly impair grandchildren's physical health or emotional well-being, and

2 appointment of expert to serve both as guardian ad litem to children and as an expert psychologist to examine the parties and children did not violate father's constitutional rights.

Writ conditionally granted.

West Headnotes (6)Collapse West Headnotes

Change View

1Parent and Child

The relation in general

In a suit affecting the parent-child relationship, trial court cannot infringe on the fundamental right of parents to make child rearing decisions simply because it believes a better decision could be made. V.T.C.A., Family Code § 105.001.

1 Case that cites this headnote

2Child Custody

Grounds and factors in general

A trial court abuses its discretion if it grants temporary access to grandchildren when a grandparent does not overcome the presumption that a parent acts in his or her child's best interest by proving that denial of access to the child would significantly impair the child's physical health or emotional well-being. V.T.C.A., Family Code § 153.433(a)(2).

9 Cases that cite this headnote

3Child Custody

Death of parent

Maternal grandfather failed to establish that denial of access to his grandchildren would significantly impair grandchildren's physical health or emotional well-being, and thus grandfather was not entitled to access to and possession of grandchildren; although grandfather presented evidence that grandchildren experienced anger and nightmares following their mother's death, there was no evidence of anything more substantial than grandchildren's understandable sadness resulting from losing a family member and missing their grandparents, father had taken responsible, precautionary measures to ensure that children were able to cope with their grief, and father was willing to allow grandfather to see his grandchildren with conditions. V.T.C.A., Family Code §§ 153.432, 153.433(a)(2).

4 Cases that cite this headnote

4Child Custody

Grandparent Visitation and Access to Child

Step-grandparents do not have standing to seek access to their step-grandchildren. V.T.C.A., Family Code § 153.432.

1 Case that cites this headnote

5Child Custody

Reports and recommendations

Parent and Child

The relation in general

Trial court's order in grandparent access proceedings, appointing an expert to serve both as guardian ad litem to children and as an expert psychologist to examine the parties and children to make recommendations to the court, did not violate father's constitutional right to make child-rearing decisions; trial court was statutorily authorized to appoint expert to determine best interests of children, role of psychologist in evaluating the children and parties was consistent with the role of a guardian ad litem, trial court only ordered parties to follow expert's recommendations and otherwise cooperate in her evaluation of the circumstances surrounding the basis of the suit, and parties had the opportunity to object to expert's recommendations. V.T.C.A., Family Code §§ 101.032(a), 107.002(a, b, e), 107.021(a)(3), (b)(2); Vernon's Ann.Texas Rules Civ.Proc., Rule 204.4(a).

6Child Custody

Discretion

Child Custody

Authority of courts and judges

Despite considerable discretion vested in courts to issue temporary orders for the safety and welfare of the child in custody proceedings, a court cannot act to infringe on a party's constitutional rights. V.T.C.A., Family Code § 105.001.

Opinion

PER CURIAM.

In this grandparent-access suit, the trial court issued temporary orders that included granting a grandfather temporary access to and possession of his grandchildren. However, the trial court abused its discretion in issuing the order because the grandfather did not establish by a preponderance of the evidence that denial of access to or possession of the grandchildren would significantly impair their physical health or emotional well-being. For the reasons expressed below, we conditionally grant mandamus relief and direct the trial court to vacate its temporary order for access and possession.

Amanda Scheller passed away in September 2007. She was survived by her two young daughters and husband, Richard Scheller (“Scheller”). Both before and after Amanda passed away, her daughters visited Amanda's father and step-mother, William Pemberton (“Pemberton”) and Judy Pemberton (“Judy”), every four to six weeks in Crockett, Texas. During the year after Amanda's death, Scheller relied on the Pembertons for assistance taking care of his two daughters. The girls currently live in Austin with Scheller and his new wife, Sylvia.

*642 The Schellers' relationship with the Pembertons began to deteriorate in December 2008. Scheller alleges the conflict began when he took the children to visit the Pembertons in Crockett on Christmas Day, rather than Christmas Eve. The Pembertons blame the conflict, in part, on a decreased frequency of visits, which they attribute to Scheller's relationship with Sylvia. But Scheller claims the decreased visits were a result, in part, from the Pembertons admitted refusal to follow set conditions he laid out for his children's visits, such as avoiding certain topics of conversation and adhering to a particular bedtime. Conflict over the time and manner of the Pembertons' visits with the girls continued throughout 2009. Verbal confrontations about the girls arose on the telephone, in public, and at the Schellers' home in Austin.

Pemberton filed suit for grandparent access in August 2009. See TEX. FAM.CODE § 153.432 (providing for suits by grandparents for possession or access to grandchildren). He petitioned for temporary access to the girls and for the court to appoint an expert to evaluate whether denying Pemberton access to the girls would significantly affect their physical health or emotional well-being. The trial court rendered temporary orders awarding Pemberton the following access rights: (1) weekly telephone or webcam access to the girls for up to ten minutes, (2) possession and access one weekend of every even-numbered month, (3) possession and access from December 28th through December 30th, and (4) possession and access for either the second week of July or the week during which a particular Vacation Bible School is held. The orders contain general conditions and restrictions that the Pembertons must follow while the children are with them. The court also appointed an expert to serve both as the children's guardian ad litem and as a psychological expert to evaluate the relationship between the children and the parties in conflict and make recommendations regarding whether denying Pemberton access to his granddaughters would significantly impair their physical health or emotional well-being.

Scheller sought mandamus relief in the court of appeals. The court granted temporary relief and stayed the trial court's temporary order, but subsequently lifted the stay and denied mandamus relief. Scheller now seeks mandamus relief from this Court. He argues that the temporary orders for access to and possession of the children and appointment of an expert violated his fundamental liberty interest as a parent to have control and autonomy in making child-rearing decisions. Scheller requests that we reverse the trial court's order for temporary access and render judgment denying Pemberton's petition for access and appointment of an expert. We address each contention.

1Trial courts have considerable discretion in making temporary orders for a child's safety and welfare in suits affecting the parent-child relationship. See TEX. FAM.CODE § 105.001. However, a trial court cannot “infringe on the fundamental right of parents to make child rearing decisions simply because [it] believes a better decision could be made.” Troxel v. Granville, 530 U.S. 57, 72–73, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality op.) (internal quotations omitted); see also In re Chambless, 257 S.W.3d 698, 700 (Tex.2008) (per curiam) (“Parents enjoy a fundamental right to make decisions concerning the care, custody, and control of their children.” (quotation omitted)). We have held that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” *643 In re Derzapf, 219 S.W.3d 327, 333 (Tex.2007) (per curiam) (quoting In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex.2006) (per curiam) (quoting Troxel, 530 U.S. at 68, 120 S.Ct. 2054)).

2Scheller first argues that the trial court improperly issued the temporary orders for access to and possession of the children. A trial court abuses its discretion if it grants temporary access to grandchildren when a grandparent does not “overcome the presumption that a parent acts in his or her child's best interest by proving that ‘denial ... of access to the child would significantly impair the child's physical health or emotional well-being.’ ” Derzapf, 219 S.W.3d at 333 (quoting TEX. FAM.CODE § 153.433(2) (current version at TEX. FAM.CODE § 153.433(a)(2))).

We have granted conditional mandamus relief in similar cases when a grandparent does not overcome his “high threshold” burden.Derzapf, 219 S.W.3d at 335; Mays–Hooper, 189 S.W.3d at 778. In Derzapf, we held that the grandchildren's “lingering sadness” from lack of contact with the grandparents did not sufficiently demonstrate significant harm to the children because the court-appointed psychologist testified that the sadness did not “manifest[ ] as depression or behavioral problems or acting out” so as to “rise to a level of significant emotional impairment.” 219 S.W.3d at 330, 332–33. And in Mays–Hooper, we held the trial court erred because it “did not indicate any reason why” it should interfere with the parent-child relationship, and the mother “articulated several reasons for not wanting to turn her son over to her mother-in-law[,]” including “differences about church attendance, what to say about [the father's] death, and alleged inattention by her mother-in-law.” 189 S.W.3d at 778.

The United States Supreme Court addressed the issue of grandparent access in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality op.). The Court held that a trial court's order for grandparent access unconstitutionally infringed on the parent's fundamental liberty interest where there was no evidence that the parent was unfit, that the children's health and well-being would suffer, or that the parent intended to exclude grandparent access entirely. Id. at 68–71, 120 S.Ct. 2054. Accordingly, the Court affirmed the Washington Supreme Court's holding that “ ‘[p]arents have a right to limit visitation of their children with third persons,’ and between parents and judges, ‘the parents should be the ones to choose whether to expose their children to certain people or ideas.’ ” Id. at 63, 120 S.Ct. 2054 (quoting In re Custody of Smith, 137 Wash.2d 1, 969 P.2d 21, 31 (1998)).

3Similar to Derzapf and Mays–Hooper, the trial court abused its discretion in this case because Pemberton did not satisfy his burden to be granted access rights. Pemberton argues that he met the statutory burden to prove that his granddaughters' mental and physical health would suffer if he did not have access to them. He presented evidence about behavior exhibited by the girls and circumstances influencing their mental and physical health including: (1) the girls displaying anger; (2) one of the girls experiencing instances of isolated bed wetting and nightmares; (3) witnesses who have seen Pemberton with the children testifying that, from their experiences, denying Pemberton access to his granddaughters would impair the children's physical or emotional development; and (4) the significant impact of loss of maternal family members on the girls, leaving Pemberton the only remaining maternal familial connection.

4However, that evidence is not enough to satisfy Pemberton's hefty statutory burden, and we hold that the trial *644 court abused its discretion in issuing a temporary order for access to and possession of the children. Like the children in Derzapf, there is nothing in the record here to indicate anything more substantial than the children's understandable sadness resulting from losing a family member and, according to the Pembertons, missing their grandparents. 219 S.W.3d at 330. In fact, the record shows that Scheller has taken responsible, precautionary measures to ensure that his daughters are able to cope with their grief, such as sending his older daughter to counseling and grief groups. As in Troxel, Scheller appears to be willing to allow Pemberton to see the girls as long as he comes to Austin and does not bring Judy.1 Scheller concedes he has not spoken with Pemberton since this litigation began, but explains that his attorney advised him against it.

We hold that the trial court abused its discretion in granting a temporary order for access to and possession of the Scheller girls because Pemberton did not meet the hefty statutory burden required to prove that he is entitled to grandparent access rights. If evidence is presented as the litigation develops that overcomes the hefty presumption, the trial court may reconsider the issue. However, there was insufficient evidence at this stage of the litigation for the trial court to issue the temporary order granting Pemberton access to and possession of his granddaughters.

5Next, Scheller challenges the trial court's order appointing an expert to serve both as guardian ad litem to the children and as an expert psychologist to examine the parties and children to make recommendations to the court. He argues that the trial court's appointment violates his constitutional right to make child rearing decisions and is effectively more invasive than the temporary access orders because it requires Scheller to follow recommendations made by the expert.

6Despite considerable discretion vested in courts to issue temporary orders “for the safety and welfare of the child,” a court cannot act to infringe on a party's constitutional rights. TEX. FAM.CODE § 105.001, see also Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex.1995) (per curiam) (holding that a trial court abused its discretion by entering a temporary gag order in a child custody modification proceeding that violated the parties' constitutional rights to free speech and due process). Parental control and autonomy is a “fundamental liberty interest.” Derzapf, 219 S.W.3d at 335 (quoting Troxel, 530 U.S. at 65, 120 S.Ct. 2054). And as we previously explained, there is no reason to inject the State into the family realm when a parent adequately cares for his children. Id. at 333 (citations and quotations omitted). However, the trial court's appointment of an evaluative expert does not infringe on Scheller's rights because such an appointment is allowed by law; the order entered by the Court does not interfere with the parental relationship, but rather seeks to determine the best interests of the children; and no conflict exists between appointing the evaluating psychologist as guardian ad litem.

The Family Code specifically provides for this type of appointment. A suit for access to a child is a suit affecting the parent-child relationship (SAPCR) in which the principal consideration is the child's best interest. See TEX. FAM.CODE § 101.032(a) (defining a SAPCR); id. *645 § 153.002 (explaining that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of ... possession of and access to the child”). In SAPCRs, a trial court may appoint a psychologist or psychiatrist to conduct a mental examination of the parties and children subject to the suit. TEX.R. CIV. P. 204.4(a). A trial court additionally has discretion to appoint a guardian ad litem in a suit for access to a child if it “finds that the appointment is necessary to ensure the determination of the best interests of the child....” TEX. FAM.CODE § 107.021(a)(3), (b)(2). Psychologists are one class of professionals qualified under the Family Code to serve as a guardians ad litem. See id. § 107.001(5)(B), (5)(C). In using these finite resources at the trial court's disposal to determine the best interests of the children, the trial court did not abuse its discretion.

Also, nothing on the face of the order indicates that the trial court erred in appointing the same person to serve as expert psychologist and guardian ad litem. The role of the psychologist in evaluating the children and parties is consistent with the role of a guardian ad litem because the psychologist gives the court recommendations about the children's best interests. See TEX. FAM.CODE § 107.002(a), (b), (e) (detailing a guardian ad litem's duties, which include reviewing relevant records, interviewing the parties and children subject to the suit to determine the child's best interest, reporting to the court, testifying during hearings, and performing any other relevant tasks the court orders).

Scheller argues that this specific order violates his constitutional rights. Generally, a trial court would commit error by requiring a party to adhere to expert recommendations in violation of a party's constitutional rights. However, in this case, the trial court did not abuse its discretion or commit an error of law by appointing an expert to evaluate the parties and children, represent the children's best interests, and make recommendations to the court as to whether depriving Pemberton access would significantly harm the girls' emotional well-being or physical health. Scheller argues this order violates his constitutional rights because it orders his children to participate in counseling. Trial courts may order parties to participate in counseling with a mental health professional if they have a “history of conflict in resolving an issue of ... access to the child.” TEX. FAM.CODE § 153.010(a)(1). But it is clear from the order that the trial court did not intend to require counseling, but instead intended to have an expert psychologist assist the court in making factual determinations regarding whether depriving Pemberton of access to and possession of his grandchildren would significantly impair their physical health or emotional well-being.

Scheller's argument is unpersuasive given the content of the temporary order appointing the expert, whose dual role as guardian ad litem and evaluative psychologist facilitates the court's factual inquiry into the children's best interest and physical and emotional welfare. The trial court appointed the expert “to evaluate the circumstances surrounding the relationship between the Petitioner, Respondent, and the children, and to make recommendations to the court regarding whether denial of possession and access to the children by Petitioner would significantly impair their physical health or emotional well-being.” The parties are only ordered to “follow the recommendations of [the expert] and otherwise cooperate in her evaluation of the circumstances surrounding the basis of th[e] suit, including but not limited to, making the children available for any interviews, joint sessions, individual sessions, *646 or other contact deemed necessary by [the expert] in performance of her duties....” Further, the court will hold a hearing if party objects to the recommendations relating to whether an evaluation should be performed on a party or child. Accordingly, the expert's role as demonstrated by the trial court's order does not interfere with Scheller's constitutional rights.

Scheller is entitled to mandamus relief because the trial court abused its discretion in issuing temporary orders for grandparent access. Pemberton did not meet the burden required to divest a parent of control and autonomy in making parenting decisions. This is irremediable error that warrants mandamus relief. See Derzapf, 219 S.W.3d at 334–35. However, the trial court did not err in appointing an expert to serve as guardian ad litem to the children and as a psychologist to evaluate the case and make recommendations to the court regarding the children's best interests. Accordingly, without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to lift the temporary order permitting grandparent access. See TEX.R.APP. P. 52.8(c),59.1. We are confident that the court will comply, and the writ will issue only if it does not.