According to a 2022 study, approximately 2.55 million U.S. children live in a household with their grandparents. The relationship between a grandparent and grandchild can have a significant positive impact and influence on a child’s emotional development and is one of the closest relationships there is, second to the parent-child relationship.
What happens when the child’s parent denies them that relationship? Learn about the history of grandparent rights cases in the United States, the rights of grandparents, and how a Texas family law lawyer can help Texas grandparents with the legal advice and support they need to assert their legal rights to be in their beloved grandkids’ lives.
Yes, parents can deny grandparent visitation in Texas. Grandparents do not have an absolute right to visitation. However, Texas courts can grant visitation rights to grandparents, even over parental objections in some situations. These include the following:
It’s important to remember, however, that a grandparent cannot sue for visitation if the following situations lead to someone else adopting the child:
If someone other than the child’s stepparent adopts them, the adoptive parent can deny the biological grandparent visitation rights as the child’s conservator. In such a case, the best bet to find out what rights you may have is to contact a qualified Texas family law attorney to discuss your options.
The issue of grandparent rights seemed to have sparked when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The Troxels were the paternal grandparents, and their son had died. The surviving parent (Granville) allowed visitation with the Troxels, but the visitation was limited. The Troxels 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. This statute was bound to take a fall, which it did.
The grandparents got less visitation than they wanted but more than the mother wanted to give. The child’s 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 did not consider the parent’s decisions or wishes regarding what was best for the child. The only people involved were the person who 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. Ultimately, the Supreme Court found the Washington statute unconstitutional. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. This presumption ultimately got the ball rolling on limiting a grandparent’s right to sue for visitation. It has been used throughout the states and in Texas law in crafting our grandparent rights statute.
So, what is the law concerning grandparent rights in Texas? This is a very technical subject that you should discuss with an attorney. I will simplify the legal jargon as much as possible in this article but understand that talking with a knowledgeable Texas family law attorney can give you a more accurate idea of your rights and options in your circumstances.
Texas family code states that a grandparent may seek visitation of a grandchild by filing a lawsuit only if the parent of the child meets one of the following criteria labeled a. through d.
A. The parent has been incarcerated.
B. The parent is dead.
C. The parent is ruled to be incompetent.
D. The parent does not have legal possession of or access to the child.
If the parent of the child meets one of the aforementioned criteria, the grandparent will have to meet all three of the numbered circumstances below to file for visitation.
You can see that this statute is very limited. Criteria a. through d. severely limit 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 v. Granville ruling. 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 grandchild’s parent) does not meet one of the four criteria lettered criteria above, then you cannot file a suit.
But that is not the end of it. In addition to meeting the specific criteria set out in a. through d., the grandparent must attach an affidavit to their lawsuit that lists specific facts supporting the allegation that denial of possession would significantly impair the child’s physical health or emotional well-being.
If the Texas court feels that the facts in the affidavit are insufficient to support the claim that lack of visitation would impair the child’s well-being, the court will dismiss the suit.
What does this all mean? Even if you meet one of the criteria in a. through d. above, your affidavit must prove that the child’s well-being would be significantly impaired without grandparent visitation. If you cannot, the case is dismissed.
The most common misconception is that any grandparent can sue a parent for visitation. In Texas, the ability to file a lawsuit for just visitation is severely limited. The courts will almost always allow a fit parent to decide on whom the child does and does not visit. However, if the child is in a dangerous situation, the grandparent may be able to sue for custody.
We have gotten visitation rights for a grandparent in several cases. They met the strict requirement for filing a visitation lawsuit for a grandchild, and we proved that denial of visitation to the grandchild was harmful to the child and not in their best interest.
In each of these cases, the child’s parent was deceased (which is one of the requirements). We were able to show the court that the surviving parent had previously allowed significant access to the child but then began to take visits away slowly until there was nothing left, which was detrimental to the child.
Specific circumstances that might allow a grandparent to seek conservatorship or custody of a grandchild in Texas include the following.
There are very few circumstances where grandparents can obtain custody in Texas. It is challenging to become a managing conservator of a grandchild, and even harder if you are trying to become the only managing conservator. It is easier if both parents are dead or they both voluntarily relinquish the parental rights of the child to you or someone else. In either case, it is a good idea to seek advice and legal representation from a Texas family lawyer before moving forward.
If you do not meet the criteria above, there are a few other options and loopholes that may help you gain grandparent rights. If you need help, contact a lawyer with a Texas family law firm to discuss your options. There may still be a chance, and you will only know once you speak to a lawyer.
Your grandkids are your world, and you want to protect them, be by their side, and make sure they get the best shot at a good life. When their parents and other family members cut you out of their lives, it’s heart-wrenching. Child visitation and custody cases involving grandparents can be tricky and complex.
At the Law Office of Chris Schmiedeke, we pride ourselves on our compassion and determination and will fight for you every step of the way. We are well-versed in Texas family law and have years of experience helping people like you fight for their rights.
If you live in the Dallas-Fort Worth metro area, we can help.
I was born in Dallas and spent the majority of my life here. I moved to Denver in the middle of the first grade and moved back to Plano in the middle of the eleventh grade. I graduated from Plano Senior High in 1984 and then attended Richland College and the University of North Texas where a received a Bachelor of Business Administration. From there I attended the Texas Tech University School of Law and was licensed to practice law in May of 1993.