“Grandparents’ rights” is a broad term under Texas law. It is typically thought to mean the right to enforce visitation with a grandchild. More precisely, it means that in certain limited circumstances, a grandparent may file a lawsuit for “access” to a grandchild or “possession” of a grandchild.
“Access” means the right to communicate and visit with a grandchild without taking possession of the child away from the person who has custody of the child. “Possession” (commonly referred to as visitation) means the right to take possession of the child for limited periods of time outside the presence of the person who has custody of the child.
The circumstances under which a grandparent may file suit for “access” or “possession” are limited due to the opinion in Troxel, a United States Supreme Court case. In Troxel, the Supreme Court stated the presumption that fit parents act in the best interest of their child and have the fundamental right to decide who has access to their child. That said, many people believe that grandparents are important in a child’s life and should not be arbitrarily “cut out” of the picture.
In an attempt to reconcile the Troxel holding with the need for grandparents to be a part of their grandchildrens’ lives, the Texas Legislature enacted specific guidelines for determining whether a grandparent can bring suit for “access” to or “possession” of a grandchild. In general, a grandparent must file a lawsuit for “access” or “possession” before either:
1. Both biological parents have died, had their parental rights terminated or executed an affidavit of voluntary relinquishment or an affidavit waiving interest in the child that designates someone other than a step-parent as the child’s managing conservator; or
2. Someone other than a step-parent has brought suit to adopt the child.
Only a biological or adoptive grandparent, but not a step-grandparent, may file suit for “access” or “possession.” In order to prevail, a grandparent must prove:
1. The parental rights of at least one of the child’s biological or adoptive parents have not been terminated;
2. The child’s physical health or emotional wellbeing would be significantly impaired if the grandparent were denied access to or possession of the child;
3. The grandparent is the parent of the child’s parent; and
4. At least one of the following is true about the child’s parent who is the son or daughter of the grandparent bringing the suit:
a. The child’s parent has been incarcerated for at least three (3) months before the case is filed;
b. The child’s parent has been declared judicially incompetent;
c. The child’s parent is dead; or
d. The child’s parent does not have actual or court ordered possession of or access to the child.
At the time suit is filed, a grandparent must execute an affidavit stating the facts demonstrating that denial of “access” or “possession” would significantly impair the child’s physical health or emotional wellbeing. The court must dismiss the lawsuit if it determines that the facts stated in the affidavit, even if true, do not demonstrate significant impairment to the child.
If, however, a grandparent successfully proves the required facts, the court will enter an order defining the grandparent’s rights of reasonable “access” to or “possession” of the child and specifying the terms and conditions of communication and visitation between the grandparent and the child.
As an alternative to seeking “access” or “possession,” grandparents may file suit for managing conservatorship (i.e., custody) of a grandchild. While there are a number of circumstances under which a grandparent may file a custody suit, two of the most common situations are (i) when a grandparent has had actual care, control and possession of the child for at least six (6) months before filing suit, or (ii) when the child’s current circumstances will significantly impair the child’s physical health or emotional development (although it is not necessary to prove actual harm to the child). Grandparents also may obtain joint custody of a grandchild with one or both parents by entering into a written agreement with the parents.
The issues surrounding grandparents’ rights are complex and unique to each family situation. All too often, grandparents struggle with the poor lifestyle choices made by a son or daughter and the detrimental impact those choices have on their grandchildren. If you are a concerned grandparent desiring to further explore your rights regarding your grandchildren, call Sonya Coffman. Because . . . family matters.