Grandparents’ Rights in Texas
Posted on April 9, 2014
by Margie Connolly
Written by Margie Connolly, Attorney at Law, Sugar Land, Texas.
Families change forms on many levels. Birth, death, divorce, incarceration, and many other events can occur which change the dynamic of the traditional nuclear family. When the parent of a minor child leaves the family for any of these reasons, grandparents may wish to inquire as to their rights to access and possession (visitation) with the grandchildren
Grandparents rights generally means laws, statutes, and case law that relate to the custody and visitation of a grandchild. Today, every state has specific laws on grandparent visitation. However, the law varies from state to state. Some states, such as Utah or Oklahoma, are considered more “friendly” to grandparents rights, and refer to the “rebuttable presumption” that although a parent’s decision about grandparent visitation is deemed to be in the best interest of the child, the grandparents can potentially rebut that presumption if they meet several specific factors. Other states, such as Florida, have struck down various grandparents rights laws as being unconstitutional if the laws attempt to go against the parents wishes (citing that the parents should have the final say in who their child spends time with), unless the grandparents show with ‘clear and convincing evidence’ that the child will suffer irreversible harm without the visits.
In Texas, normally grandparents can see their grandchildren any time, per the parent’s wishes. But if the parents object to the grandparents visiting the grandchildren, or having a relationship with the grandchildren, there are no “automatic” or “inherent” grandparents rights. Put another way, grandparents have no rights of visitation with their grandchildren unless they go to Court and have it established through a Court order.
When grandparents seek possession or access to a grandchild through the Courts in Texas, they must file a petition with the Court and execute and attach an affidavit, with supporting facts, stating that the denial of possession or access to the child would significantly impair the child’s physical health or emotional well-being. TEX. FAM. CODE. § 153.432 (c). If denial of access is the issue, the Courts will presume that the parents are acting in the child’s best interest. The presumption must be overcome by a preponderance of the evidence. TEX. FAM. CODE § 153.433(a)(2). Assuming there is another parent who has custody of the children, grandparent’s rights are limited by the parent’s constitutional right to raise his or her child as she sees fit, even if that means restricting grandparents’ visitation.
The U.S. Supreme Court ruled in 2000 that grandparents’ rights to visitation are subservient to a parent’s right to decide. After their son died, the paternal grandparents brought a petition requesting visitation with their granddaughters. The mother agreed to some visitation, but did not agree to the extended visitation requested. The grandparents filed suit in the Washington State court seeking visitation. The state court granted visitation to the grandparents and the mother appealed the ruling as unconstitutional. The Supreme Court held that the lower court’s presumption that it is normally in the best interest of children to spend time with the grandparent failed to provide any protection for the mother’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.
If you have questions about your rights to visit with, or attempt to gain custody of a grandchild, you should consult a family law attorney about the requirements. For more information, visit my website at https://mmconnollylaw.com