A grandparent’s right to his or her grandchild is tenuous at best.
If there is blame to lay for the current state of affairs, then it can be placed squarely upon the U.S. Supreme Court. In 2000, the Court issued the Troxel opinion, which recognized a parent’s fundamental constitutional right to make decisions regarding his or her child’s care, possession and control. Using the words “fundamental” and “constitutional” in the same sentence is a red flag that this is some pretty serious stuff.
Texas took the Troxel decision and improved upon it by adopting even more stringent parental protections. The result is that a non-parent, such as a grandparent, has a very steep hill to climb to best mom and dad for custody, visitation or management of the child.
A grandparent cannot get through the front door of the courthouse to even file a claim regarding a grandchild without some type of legal “standing.” There are 14 statutory subsections that define permissible standing. The most common ones used by grandparents are that the child’s parents are both deceased, that the child and a parent or guardian lived with the grandparents for at least 6 months and then the parent or guardian died, or that the grandparent had actual care, control and possession of the child for at least 6 months. These are all fact-specific and can be heavily litigated. In one case, two children, 3 and 5 years old, stayed at their grandfather’s home and the grandfather took them to school and appointments. The court decided the grandfather did not have standing because the mother still made some of the decisions, such as buying their clothes and directing when the kids would stay with their grandfather.
There is one other open door for a grandparent to walk through, and that is the statute that allows a grandparent to request managing conservatorship if the grandchild’s present circumstances (at the time the suit was filed) would significantly impair the child’s physical health or emotional development, or if both parents, a surviving parent, or the current managing conservator consents. Not surprisingly, there have been a lot of appellate cases on this statute, too. The cases that have found significant impairment are not pleasant to read.
Biological and adoptive grandparents can file a suit for possession and access to their grandchild. They have to attach an affidavit that details facts showing that denial of the possession or access would significantly impair the child’s physical health or emotional well-being. The grandparents may even be able to gain access to a grandchild who is being adopted by someone else.
Regardless of how the grandparents get into the court, they will almost always have to overcome the presumption that a parent is the best one to care for the grandchild. A parent can lose the presumption by a series of very bad acts, by voluntary surrender of possession of the child for a year or more, or by committing family violence.
The take-away? Grandparent rights are complicated.
Hammerle Finley Law Firm. Give us a call. We can help.
Want to receive our monthly email newsletter or book one of our attorneys for a speaking engagement? Email LegalTalkTexas@Hammerle.com and let us know how we can help.
The information contained in this article is general information only and does not constitute legal advice.