One of the unwritten rules of being a grandparent, is the duty to love and spoil with unhindered devotion. Unfortunately, sometimes that can be at tall order, especially if divorce or death has severed access to your grandchild.
The parent/child relationship is held in the highest regard by both federal and state law, and as such, grandparents are not afforded the same rights as parents in terms of custody and visitation. However, this doesn’t mean all is lost for Nana and Pop. In some limited situations, it may be possible for grandparents to qualify for visitation, and/or custody over their grandchild.
For grandparents who are interested in pursuing those ends, here’s what you need to know exercising your rights in Texas.
Naturally, the easiest way to see your grandchild, is to simply ask your child or child-in-law for the privilege.
However, if you’re suing for visitation (or, “access,” as it’s referred to in the legal sphere), chances are you were shut down by at least one of the child’s biological or adopted parents at some point. That means, in order to grant your petition, a judge would need to circumvent the parent’s clear wishes—something courts are loath to do.
That being said, the state of Texas recognizes the value of a grandparent’s love, and courts understand that this deep bond is sometimes critical to a child’s overall health and well-being. As such, the Texas Family Code allows judges to entertain a grandparent’s claim to visitation, IF:
- At least one of the parents still has their parental rights;
- The denial of visitation would result in significant mental or physical harm to the child; and,
- The parent has either been:
- Incarcerated for at least three months prior to filing; or
- Is found mentally incompetent by court order.
Best Interest of the Child
Overcoming the second element—meeting the standard of harm—is by far the most difficult part of getting your visitation petition in front of a judge.
In Texas, if a parent is fit and of sound mind, then the court presumes they are prioritizing their child’s well-being. They also presume that parents are the ones who are best suited to make decisions regarding their child’s welfare. When these longstanding presumptions about parenting are challenged, courts will review contrary arguments with harsh scrutiny, using the “best interest of the child standard.”
To help you overcome this hurdle, your original complaint for visitation should include a detailed affidavit outlining exactly why your presence is critical to maintaining your grandchild’s emotional or physical health, and precisely what harm will come to them, if visitation is denied.
Meeting the Standard of Harm
When drafting your affidavit, keep in mind that it won’t be enough to simply say that your grandchild misses you, or that your bond is growing weaker without face time. Divorce is hard on everyone, and judges will not force a parent to comply with a grandparent’s request, simply because they don’t like the new arrangement.
Instead, courts are looking to mitigate situations with actual harm, including:
- If there is neglect or abuse in the household;
- The parents died, were found incompetent, or incarcerated;
- A judge terminated the parent-child relationship through a court order; or,
- Situations where the child has already been living with grandparents for at least six months.
As you can see, these circumstances involve much more than a parent who doesn’t take their kid to the family reunion often enough. Children in these situations are dealing with parents who are struggling with substance abuse. Parents who have neglected, abused, or disregarded their child’s best interest, because they were unable—or unwilling—to adequately address them. In some cases, the grandparents may have even stepped in to act as the child’s primary caretaker for a while.
Unless your grandchild is suffering under one of these circumstances (or something similar), it will probably be difficult for you to prove that you deserve visitation.
Other Visitation Considerations
In addition to being able to meet the necessary level of harm, there are a few more limitations to keep in mind when considering whether or not to file a suit for grandparents’ rights.
The Child Has Already Been Adopted
The court will not hear your suit for visitation if the child has already been adopted by a stepparent, or another outside party. In those instances, the deficit of parental care has already been addressed, and the court has made accommodations to meet the child’s best interests.
At Least One Parent Must Be Alive
If both parents are deceased, the court will be looking for someone to either adopt the child, or act as their guardian. And, like we mentioned earlier, grandparent visitation suits are not allowed under these circumstances.
The Denial Must Be Total
Grandparents who are merely disgruntled because they aren’t “getting enough time” with a grandchild will most likely see their cases dismissed. If the parent is allowing access at all—even if just a little bit—the judge probably won’t entertain your suit for visitation.
Consider Resolving Issues Outside of Court
If your situation is more about a difference of opinion (rather than true harm), you might want to consider shelving your law suit aspirations, and try to solve things without legal intervention. Ask yourself why you are being denied access. Is there something you are doing that is offensive to the child’s parent? Perhaps a religious or social custom they’re uncomfortable with? If so, changing your own habits might be a more effective method of altering your current situation.
At the end of the day, children in these situations have gone through a lot, and while you might be aching to have a closer relationship with them, in some cases, the best way to take care of them might be to spare them from the physical and emotional toll of court, and simply love them from afar.
Custody and Adoption
On the other hand, there might situations where visitation isn’t enough. If CPS was forced to intervene on your grandchild’s behalf because of addiction, abuse, and neglect, or if death has claimed both parents, your grandchild might be stranded. They might need someone to step into a role of greater authority—an adult who can give them the love, emotional stability, and physical care that they need.
While the court won’t consider suits for grandparent visitation during (or after) adoption, if you are interested in assuming more responsibility in your grandchild’s life, you are always free to either adopt, or petition to become their guardian. Grandparents can be a wonderful solution in these circumstances, especially if you were already acting as caretaker prior to the disruption.
Grandparents’ Rights Attorneys in Texas
When family units break apart, it’s important to help children feel that they are loved, and that these changes are not their fault. As a grandparent, this is where you can shine, however, if the parents aren’t willing, you may have to fight for these rights.
If you are a grandparent seeking visitation or custody over a beloved grandchild, Neal Ashmore wants to help you. Call us today at (972) 436-8000, or schedule a consultation online to discuss your unique situation. The value of a grandparent’s love cannot be understated, and it’s a gift we want to make sure your grandchild receives.