Caring Child Custody Lawyer Fighting for Grandparent’s Rights in Denton County
Grandparents can play an important and lasting role in their grandchildren’s lives, and in many families, parents do their best to foster their children’s relationships with their grandparents. With the parents’ approval and permission, grandparents generally may visit their grandchildren at will.
However, as may be expected, problems can arise when parents are at odds with their children’s grandparents. In some cases, parents choose to restrict grandparents’ contact or visitation with the grandchildren. Like many states, the laws of Texas limit the circumstances in which a grandparent can have “possession of” a grandchild (i.e., visitation or custody) or “access to” a grandchild (i.e., continuing contact).
Grandparents’ Rights in Texas: A Starting Point
Per the United States Supreme Court, grandparents do not have a Constitutional right to visit or see their grandchildren. This determination is based on the general presumption that parents have a fundamental and automatic right to ascertain the best interests of their children. As a result, parents are entitled to decide who does or does not have contact with their children – including grandparents.
However, the presumption that parents act in the best interests of their child(ren) is not absolute; and there are situations where it is evident that the parents fall short in this regard. In these instances, grandparents often seek to intervene and request custody of their grandchildren.
While recent changes in Texas law have relaxed certain procedural restrictions faced by grandparents wishing to petition the court for possession of and access to their grandchildren, they still face an uphill battle.
A High Standard to Meet
Section 153.433 (a) of the Texas Family Code, which specifically addresses grandparents’ rights, states as follows:
The court may order reasonable possession of or access to a grandchild by a grandparent if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being;
(3) the grandparent requesting possession of or access to the child is a 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 petition;
(B) has been found by a court to be incompetent;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child. (Emphasis added).
But Remember: The Best Interests of the Child Will Always Guide the Court’s Decision
Above all else, it is important to remember that, section 153.022 of the Code provides that, “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.” (Emphasis added).
What Does This Mean for Grandparents?
It means that there is a very high threshold for grandparents to meet for two reasons. It is generally very difficult to prove “by a preponderance of the evidence” that:
- harm to the child’s physical or mental well-being will result unless custody or visitation is granted to the grandparents; AND
- that one of the factors listed in section (3) above exists.
Practically speaking, this means that the court will order custody or visitation in very limited circumstances. Nevertheless, the court has the ultimate discretion to overrule the parents’ desires if the best interests of the child necessitates such a decision.
- A grandparent may not petition the court for custody or visitation of his or her grandchild if that child is adopted by an individual other than the child’s stepparent.
- If a grandparent successfully obtains custody of his or her grandchild, that grandparent may petition for child support from the other parent.
Contact a Reputable Denton Grandparents’ Rights Attorney
If you have grandchildren and believe that you must seek the court’s intervention regarding visitation and/or custody, it is imperative that you have an experienced child custody attorney at your side. I have experience helping many grandparents during these difficult and emotional times for all involved parties.