If you think that grandparents automatically have a right to see their grandchildren when the children’s parents get a divorce, you’re wrong. In 2000, the United States Supreme Court held that the Due Process Clause of the 14th Amendment, “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” Based on this fundamental right, the Court held that parents may prevent grandparents from visiting with grandchildren. In other words, grandparents have no constitutional right to visit with their grandchildren until a Court says they can.
In response to that Supreme Court opinion, many states, including Texas, enacted legislation that gives family law courts discretion to grant grandparents’ visitation over the objection of the parents if certain requirements are met. It is a difficult battle to fight, but it can be done.
Establishing Grandparent Visitation in Texas
Although the Texas Family Law Code has a provision for grandparents to file a lawsuit and petition the court for an order allowing them visitation, a simple desire to spend time with the children is not enough to overcome the presumption that the parent knows best. For grandparents to have a chance at being granted visitation, they must show that their child, who is a parent of the grandchildren, is their biological or adoptive child who still has parental rights to the child or children. In addition, the grandparents must prove one of the following things:
- The parents are divorced; or
- The grandchild’s parent has been incarcerated for at least three months prior to the date of the filing of the petition; or
- The court has found the parent to be incompetent; or
- The parent is dead; or
- The parent does not have court-ordered visitation or access to the child.
Even if the requirements have been met, the grandparents must then prove that the children will suffer either physical or emotional harm if they are not allowed to visit with their grandparents. If the children have been adopted by anyone other than a step-parent, the court will dismiss the petition without even holding a hearing. It sounds counterintuitive, but it’s usually harder for grandparents to seek visitation with their grandchildren than it is for them to seek custody. The theory here is that if you can show the parents are a danger to the grandchildren, they need for you to have more than just an occasional visit.
Grandparents May Obtain Custody of Grandchildren
If the parents have abused the children, or if the grandchildren have lived with the grandparents for at least six months, the grandparents suit for custody becomes far more viable. The children do not have to be living with the grandparents at the time the petition is filed if the children lived with the grandchildren for a period of six continuous months and the petition is filed within 90 days of the date the children stopped living with the grandparents. Additionally, grandparents must show that they are either the legal guardian of the children, or that the children have been abused or are in danger of being emotionally or physically injured by a parent. If the grandparents allege the children are being harmed, the court will hold a hearing and consider all relevant evidence including testimony of friends, neighbors, teachers, experts in the field and any other person who may assist the Court in making its custody determination. Depending on the age of the children, the court may interview them privately in chambers and take into consideration their testimony of what happened to them and ask them with whom they would prefer to live. The court’s final decision will be based on what it determines to be in the best interest of the children.
If both of the parents of the children agree that the children should live with the grandparents, or if one parent agrees and the other one is deceased, the court will most likely award custody of the children to the petitioning grandparents.
Until the Supreme Court decision in 2000, it was easier for grandparents to have Court-ordered access, possession and custody of their grandchildren. It’s no longer that easy, but it’s still possible. It just takes an attorney with the right skill set and talent. Contact Jeff Anderson. He will guide you through the process and help you develop a strategy to win one of the most important battles of your grandchild’s (or child’s) life.