Grandparent Rights in the State of Texas

John C. Mallios understands the difficult issues that face grandparents when visitation issues arise with grandchildren. There are several distinct categories in which grandparent rights are the focus of concern.

Grandparents are often concerned about their continuing relationship with their grandchildren when divorce becomes and issue for the children's parents. The best outcome is for the grandparent to remain on good footing with one or both parents so that access to the grandchild may be had through one or both parents.

Parents are allowed to permit grandparent access to the grandchildren during their term of possession. This access is broad which allows the grandchildren to spend the night with the grandparents and even to travel and vacation with the grandparents. The grandparents, however, do continue to be responsible to return the grandchildren to the proper parent at the time designated by the Court's Order.

Grandparents who have been caring for grandchildren.

Grandparents are often placed in the position of caring for and raising their grandchildren. In these circumstances the time arises when the grandparents find they need a more formal arrangement and more definite legal rights in order to best provide for the welfare and safety of the child. The law recognizes this situation and allows

Grandparents who are concerned about the health and safety of their grandchildren while in parental care.

Often no one stands in a closer perspective to the care that a grandchild is receiving than a grandparent. When that grandparent becomes gravely concerned about the health and safety of a grandchild while in parental care the grandparent often accepts the responsibility to take the difficult step of taking legal action to remove the child from the care of the parent. In some instances grandparents believe they are best suited to provide the care the child will need and chooses to take legal action to be appointed the managing conservator of the grandchild

Grandparents whose children have had their parental rights terminated or who are deceased.

This is probably the most difficult situation a grandparent can face. When a grandparents' child is no longer the parent of the grandchild, the grandparent finds they no longer have access to the child.

Access to Grandchildren

Grandparents rights generally in the State of Texas are through the parent. Either the Managing Conservator during their period of possession or the Possessory Conservator during their period of possession of the child(ren) may allow grandparent access. This access requires the grandparent to return the child to the other parent in accord with the Court's Order of Possession.

The grandparents may exercise the rights that the conservator has or allows during that time including spending the night and travel.

Under some circumstances, grandparents can obtain a court order to visit with grandchildren over the objection of the parents.

Grandparents in the State of Texas do NOT have independent rights of their own to visit the grandchildren. Parents continue to have the authority to 'raise their own children.' The first course of action is to access the grandchildren with the parents' permission and agreement. Gaining the approval of one of the parents is the simplest method of accessing a grandchild.

When parental agreement to visit grandchildren is not possible the grandparents may petition the court for visitation. In some instances the judge has the authority to grant specific periods of visitation over the objections of the parents.

Grandparents and Conservatorship (Custody)

Grandparents can petition the court for custody of grandchildren under specific circumstances:

If the children have lived with them for at least 6 months and they file the petition for custody within 90 days of when the children stopped living with them; OR

Grandparents may petition for custody of grandchildren if there is an emergency situation which endangers the health or wellbeing of the children.

Burden of Proof Grandparents Must Meet for Conservatorship (Custody)

Grandparents have a difficult burden of proof to present to the Court if they are to gain conservatorship of the granchildren. The grandparents must demonstrate to the Court two things:

1. The grandchildren are better off with the grandparents; AND

2. Living with a parent would be harmful to the child.

Law Favors Parental Rights to Raise Child

The US Supreme Court ruled in 2000, firmly on the side of the parents in Troxel v. Granville, saying that "The liberty interest ... of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court."

A Bill is pending in the Texas legislature which proposes to expand the grandparent rights statute. Perhaps the most difficult situation for a grandparent occurs when their child is deceased or their parental rights are terminated. The pending bill clarifies that existing grandparent statute to clearly state that a grandparent does not lose rights of visitation with the grandchild because a child’s parental rights are legally terminated. This bill as proposed would provide to the grandparent standing to ask for actual custody of the grandchild and not be limited to request only visitation.

See AARP and Grandparents Legal Issues

Texas Family Code Statutes Impact Grandparent Rights

SUBCHAPTER H. RIGHTS OF GRANDPARENT

Sec. 153.431. GRANDPARENTAL APPOINTMENT AS MANAGING CONSERVATORS. If the parents are deceased, the grandparents may be considered for appointment as managing conservators, but consideration does not alter or diminish the discretionary power of the court.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 153.432. SUIT FOR ACCESS. (a) A biological or adoptive grandparent may request access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 153.433. POSSESSION OF AND ACCESS TO GRANDCHILD. The court shall order reasonable 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; and
(2) access is in the best interest of the child, and at least one of the following facts is present:
(A) the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition or has been found by a court to be incompetent or is dead;
(B) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents' marriage is pending;
(C) the child has been abused or neglected by a parent of the child;
(D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3;
(E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or
(F) the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 1397, Sec. 1, eff. Sept. 1, 1997.

Sec. 153.434. LIMITATION ON RIGHT TO REQUEST ACCESS. A biological or adoptive grandparent may not request possession of or access to a grandchild if:
(1) each of the biological parents of the grandchild has:
(A) died;
(B) had the person's parental rights terminated; or
(C) executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child; and
(2) the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 561, Sec. 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1390, Sec. 13, eff. Sept. 1, 1999.

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