A Lengthy (but Informative!) Blog on the Hurdles to Obtaining Rights as a Grandparent
In a normal situation, grandparents would not need to sue for visitation or custody of their grandchildren because grandparents and parents would work together to encourage a healthy family bond between grandparents and grandchildren. However, our world is not perfect, and all families have some sort of conflict. Unfortunately, bonds between a parent and child are often broken (such as when parents divorce or separate), which may then make it difficult for that child to have a healthy bond and frequent visitation with grandparents.
Quick Historical Overview
Historically in Texas, it was not uncommon for grandparents to step in and care for their grandchildren when their own adult child was unable to provide the necessary care and nurturing that a child needs; this would occur due to divorce, substance abuse, mental health issues, etc. However, in June 2000 the Texas Supreme Court limited the rights of grandparents, and essentially held that while grandparents’ visitation rights are important, a parent’s rights are even more important. They found that Courts should presume a parent has a good reason for preventing a grandparent from having visitation with the grandchild.
When can I ask a Court to grant me visitation of my grandchild?
The Burden of Proof:
In Texas, a Court may only grant a grandparent visitation of their grandchild if:
(1) the parental rights of at least one parent have not been terminated;
(2) visitation with the grandchild is in that grandchild’s best interest; and
(3) the grandparent seeking visitation is the parent of the grandchild’s parent and the grandchild’s parent:
(a) has been in jail or prison for at least 3 months before the lawsuit was filed;
(b) has been found mentally incompetent by the Court;
(c) has died; OR
(d) does not have Court ordered possession or access to the child.
A Court will not grant a grandparent visitation of their grandchild if:
(1) both of the child’s biological parents either
(a) had their parental rights terminated;
(b) died; or
(c) gave the child up for adoption; AND
(2) the grandchild has been adopted or is in the process of being adopted by a person other than the child’s stepparent.
However, even if a grandparent is able to prove these factors, the grandparent would still need to refute the new presumption that a parent acts in the best interest of the child, or in other words, that a parent is permitted to determine that a grandparent should be denied visitation if the parents believes that to be appropriate.
To do this, the grandparent, in either an original suit or a modification, must execute and attach an affidavit establishing, with specific facts, that denial of visitation would significantly impair the child’s physical health or emotional well-being. The Court will then review the affidavit and determine whether the facts stated, if true, are sufficient to meet the high burden necessary.
(1) If the Court finds the facts stated in the affidavit, even if true, are not enough to meet the high statutory burden, the Court will be obligated to deny visitation and dismiss the suit.
(2) If the Court finds that the facts stated in the affidavit, if true, would be sufficient to meet the high statutory burden, the grandparent will have the opportunity to rebut the presumption at a temporary hearing or final trial by actually proving the facts alleged in the affidavit.
Be aware that the statutory burden is a high burden and cannot be met simply by presenting evidence that the child would benefit from visitation or that the child would be “sad” as a result of not seeing their grandparent.
So how do I get legal custody of my grandchild?
First, there are three kinds of legal custody of a child in Texas:
· Managing conservatorship means you are the person who the child lives with and the person that makes most decisions about how to raise the child.
· Possessory conservatorship means you get to visit the child and assist in making some decisions about how to raise the child
· Joint managing conservatorship means the child primarily lives with one parent, but both parents share in the decision making of how to raise the child.
No matter which kind of legal custody a grandparent wants to pursue, there are a few hurdles to jump.
1st Hurdle – Do I Have Legal Standing: First, the grandparent must establish that they have the necessary “standing” to bring a custody suit. The Texas Family Code states general requirements on who may file a suit seeking conservatorship (or custody) of a child, and identifies several situations in which a person may file an original suit. The most common situations in which a grandparent may file an original suit for custody are when the grandparent has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days before the date the custody suit is filed; or when one or both of the child’s parents are deceased.
The Court may also allow a grandparent to file an original custody suit in situations where there is satisfactory proof that “the child’s present circumstances would significantly impair the child’s physical health or emotional development,” or when “both parents, the surviving parent, or the managing conservator or custodian either filed the petition {asking that grandparents be given custody} or consented to the suit.”
2nd Hurdle – Can I Rebut the Parental Presumption: If a grandparent has cleared the hurdle of having the necessary standing to bring a custody suit, the next hurdle will be to rebut the “parental presumption” that a parent should be appointed as the primary conservator; this can be done in a couple of ways.
First, the parental presumption may be rebutted by a finding of a history of family violence involving a parent of the child.
Second, and often more difficult, the parental presumption may be rebutted by proof that a parent has voluntarily relinquished the actual care, custody, and control of the child to a nonparent for at least 1 year ending not more than 90 days before the date the custody suit is filed. To prove that a parent has voluntarily relinquished the actual care, custody, and control of the child means the grandparent must show that (1) relinquishment of the child was voluntary, (2) that the parent relinquished control; and (3) that the parent does not seek return of the child:
(1) In order to prove that the relinquishment of the child was voluntary, the grandparent must show that the parent was not forced, coerced, threatened, or compelled to relinquish the child. For example, it is not considered voluntary relinquishment if a grandparent prevents a parent from retrieving the child for several months, but it is considered voluntary relinquishment when a parent is aware of the child’s location but fails to ask for their return.
(2) Once the grandparent proves that relinquishment of the child was voluntary, the grandparent must then prove that the parent not only relinquished possession of the child, but also relinquished control over the child. For example, if a parent has left the child in the grandparent’s care, but still makes decisions for the child, then that parent did not relinquish control over the child. However, if the parent left the child in the grandparent’s care and the grandparent makes all decisions for the child, that parent has relinquished control over the child.
(3) After a grandparent has proved that the parent voluntarily relinquished possession and control of the child, the grandparent must prove that the parent does not or did not seek return of the child. So, if a parent told the grandparent she was going to take the child back, the parent clearly sought the return of the child.
3rd Hurdle – How does the Court decide who should get custody of the child?
When trying to obtain custody of a grandchild, keep in mind that a grandparent’s rights are always secondary to a parent’s rights. However, if a grandparent has standing and can successfully rebut the parental presumption, the grandparent will likely be awarded custody of the child. In some situations, a parent’s actions could result in termination of his or her parental rights altogether.
The Court decides who should get custody of the child by answering the following question: What is in the best interest of the child? This is a question that is answered on a case-by-case basis, and only after a grandparent has successfully jumped through the hurdles described above. To do this, the Court looks at a non-exhaustive list of factors the Texas Supreme Court identified, including (but are not limited to):
· the physical, psychological, and emotional needs of the child;
· whether any party poses a physical or emotional danger to the child;
· the stability of each party’s home;
· each party’s plans for the child;
· each party’s ability to give the child first priority and reach shared decisions;
· each party’s parenting skills;
· the child’s wishes, if the child is 12 years or older; and
· where the parties reside in relation to each other.
· In addition, a Court may consider almost anything else it may deem important.
Conclusion
Although the Texas Supreme Court increased the difficulty of a grandparent obtaining visitation rights or conservatorship of their grandchild, it did not make it impossible. However, keep in mind that a custody suit is not easy and has a tendency of ruining the relationships of the parties involved. So, if you are a grandparent who wants to have more frequent visitation with your grandchild, or if you are trying to seek conservatorship of your grandchild, it’s usually best for all involved if you can handle the matter with your family in private prior to taking legal action. If you and your family are able to come to an agreement amongst yourselves, it’s always best to contact a family law attorney who can formally write up the agreement.
However, if you are unable to come to an agreement and end up speaking to a family law attorney, remember that once you initiate or intervene in a child custody suit, the public will have access to all documents filed, and the status of your relationship with the child’s parent(s) is likely to worsen, despite the fact that they may be family.
If you’d like help determining if you would like to pursue custody of your grandchild, Hargrave Family Law is ready to work with you to protect what matters most to you; we’re here to help.
