What are “Grandparent Rights”? For this article, we will discuss the right of a grandparent to force a parent to provide visitation with their grandchild through court orders. There are other scenarios where a grandparent can seek custody of a grandchild which will be the subject of a later article.
The issue of visitation with a grandchild typically does not arise in the context of a healthy family relationship, i.e. mom and dad and child together in a healthy family relationship. However, when that family unit is disrupted, either through divorce, separation, or death is when you will typically run into a situation where a grandparent is alienated from their grandchild by the surviving parent or parent with custody of the child. This is where “grandparent rights” come in, or in simpler terms, the right for court ordered visitation to a grandchild.
First, a brief history of grandparent rights nationally. Where things seemed to have really sparked was when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The grandparents in this case were the Troxels. They were the paternal grandparents and their son had died. The surviving parent (Granville) allowed visitation with the Troxels but the visitation was limited. The Troxel’s wanted more visitation and sued the mother. The statute In Washington that allowed them to sue provided that “any person” could file a suit seeking visitation of a child and the trial court would grant it if it found it was in the best interest of the child. You can see how broad this statute was…any person? The garbage man? This statute was bound to take a fall, which it did. To finish the story, the grandparents got less visitation than they wanted, but more than the mother wanted to give. She (the mother) appealed it all the way to the Supreme Court of the United States.
The Supreme Court found two problems with the statute as written. First, it in no way took into account the parent’s decisions or wishes regarding what was best for the child. The only people that were really involved was the person that filed the lawsuit and the judge who imposed what they thought was best. The second problem was that the grandparent had not proven that the mother was unfit and unable to make those decisions. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. This presumption is ultimately got the ball rolling on limiting a grandparent’s right to sue for visitation. It has been used throughout the states and was used here in Texas in crafting our grandparent right statute. Ultimately the Supreme Court found the Washington statute unconstitutional.
So, what is the law with regard to grandparent rights in Texas? This is a very technical subject and should be discussed with an attorney. I will simplify the legal jargon as much as possible in this article, but understand that you would be best served talking to a family law attorney about the subject.
A grandparent may seek visitation of a grandchild, by filing a lawsuit, if ALL THREE numbered circumstances below exist, PLUS one or more of the lettered circumstances exist:
- At the time the lawsuit is filed, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; AND
- The grandparent requesting possession of the grandchild overcomes the presumption that a parent acts in the best interest of the parent’s child by proving that the denial of visitation to the grandchild would significantly impair the grandchild’s physical health or emotional well-being; AND
- The grandparent requesting visitation is the parent of a parent of the child and that parent of the child
a. Has been incarcerated in jail or prison during the three-month period preceding the filing of the lawsuit; or
b. Has been found by a court to be incompetent (a separate lawsuit); or
c. Is dead; or
d. Does not have actual OR court-ordered possession of or access to the child.
You can see that this statute is very limited. Letters a. through d. severely limits who can file suit. This statute used to include a lettered provision for divorced or separated parents as well as the four you see, but that provision was removed as a result of the Troxel case referred to above. You can see what the removal of this provision did to the ability of a grandparent to seek visitation with their grandchild. If your child (the parent of the grandchild) does not meet one of the four criteria a. through d. then you cannot even file a suit.
But that is not the end of it. In addition to having the meet the very specific criteria set out in a. through d., the grandparent must also attach an affidavit to their lawsuit that list specific facts that meet number 2. above. This means specific facts that support the allegation that denial of possession would significantly impair the child’s physical health or emotional well-being.
If the Court feels that the facts in the affidavit are not sufficient to support the requirements of 2. above, the Court will dismiss the suit.
What does this all mean? Even if you can meet one of the criteria in a. through d. above, you still have to get over the hump of number 2. via your affidavit. If you cannot, case dismissed.
This is a somewhat simplistic example of the existing law with regard to grandparent rights and grandparent visitation. There are a few other options if you do not meet the criteria above, and some limited loopholes. If you need help, contact a lawyer to discuss your options. DO NOT simply rely on this post and throw up your hands. There may still be a chance, and until you speak to a lawyer, you will never know.