Grandparent Rights under Texas Law

 Posted on May 12, 2016 in Child Custody

Today, more grandparents than ever are the sole legal and financial custodians of their grandchildren. In many other households, the ties are less formal yet almost equally as strong. For example, many parents and children live with a grandparent, who assumes most of the financial and caretaking duties. In other cases, parents and children live separately, but remain at least partially dependent on grandparents in many areas.

Grandparents' rights are essentially ironclad in the first instance, but as the bonds become less formal, the situation becomes less certain. Many times, especially during a high-asset divorce, a custodial parent will cut off contact between grandparents and grandchildren as a way of "getting back at" the other spouse. So, a complex child custody dispute becomes even more complex, after the grandparents petition for access.

The Law

Before a judge will even consider a petition for access, the grandparents must overcome several procedural obstacles in Section 153.433 of the Family Code. They are:

• At least one adoptive or biological or parent retains his or her legal rights;
• The grandparent requesting possession or access is blood kin to the child; and
• The grandparent's child is the noncustodial parent of the minor child.

The grandparent can also be in loco parentis, if their child is legally incompetent, dead, or incarcerated. In a typical suit for access, the judge will give the grandparents one weekend a month and set up periodic telephone or Internet contact periods as well.

But the tallest hurdle that the grandparent must overcome is the parental presumption that parents always act in the best interests of their children. To do so, the petitioners must prove, by a preponderance of the evidence, that "denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being."

Overcoming the Parental Presumption

The hurdle is actually lower than it appears to be. The petitioner only needs to prove "significant impairment," as opposed to something worse.

If the grandparents have been regular babysitters in the past, an argument can be made that destroying that arrangement would not be in the children's' best interest. There is also scientific evidence that children benefit from contact with the grandparents, and this evidence is normally admissible without expert testimony.

Grandparents who are denied visitation with their grandchildren may have legal options. For a confidential consultation with an aggressive Round Rock high asset divorce lawyer, contact our office. Call Powers Kerr & Rashidi, PLLC at 512.610.6199 today.

Sources:

http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family/

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.153.htm

http://www.psychologicalscience.org/index.php/news/releases/the-ties-that-bind-grandparents-and-their-grandchildren.html