In the life of a family, grandparents play an extremely important role in not only helping to raise children but in being able to offer a bridge between the present and future of a family and its past. I know in my own life, my grandparents had played a tremendously important role in my upbringing for myself and my children. I cannot even begin to describe the sort of impact that my grandparents have had in my life as forces for good. I’m willing to bet that many of you who are reading this blog post have had similar experiences with your grandparents.
The ability for a grandparent to nurture and aid in the development of a young child early on in their life allows for bonds to be created that last forever. Ideally, the strength of those bonds is never tested because a family is always able to work through their problems and see to it that children and grandparents have loving and continual relationships that strengthen and evolve. As families grow and change so do the nature of those relationships. However, one thing that does not change is the amount of love the members of a family have for one another.
However, as I have seen many times in my professional life it is not always possible for a family to remain intact whether due to divorce, death, or for a myriad of other reasons. In circumstances like these, he may be confronted with a situation where U as a grandparent has not been able to see your grandchild for a circumstance that is out of your immediate control. You may be asking yourself whether or not there is anything you can do to ensure that you are always able to have a place in your child’s life no matter what else is going on.
Like most every other state in the country, Texas has laws contained within our family code that pertain to conservatorships and the Visitation rights of grandparents about their grandchildren. Like a parent, a grandparent may file a suit affecting the parent-child relationship wherein you request custody of your grandchildren if you believe that it is in the best interests of your grandchild. The best interest standard is one that applies to any Texas family law case involving children. A judge would have the ability to away all the different factors in your case and decide about what living arrangements will serve the child best from an emotional, physical and educational perspective.
Additionally, if becoming a conservative and permanent caretaker of your grandchild until he or she reaches 18 or graduates from high school is not in the cards for your family then you also can request Visitation rights about your grandchild. Believe it or not, it can be trickier in some regards for you to be able to be named as a grandparent with Visitation rights to your grandchild in comparison to a grandparent who has conservatorships rights.
Not only do you have to show that it is in the best interest of your grandchild that you have Visitation rights to him or her but you also need to show that other circumstances are in play to be successful in this type of lawsuit. For instance, you would either need to show that your grandchild’s parents are divorced, that one parent has been incarcerated or has passed away, there is a court order that terminates the parental rights of one of their parents, your grandchild has been abused, or neglected by one parent, or that your grandchild has lived with you for at least a six month. Shortly before your lawsuit was filed.
The reality of Visitation rights as a grandparent in Texas is that the state does not provide you with an explicit right to Visitation of your grandchild. Bear in mind that this means that if no circumstance that we just listed is relevant to your family then your grandchild’s parents may restrict your Visitation completely. This can be a difficult pill to swallow especially for a grandparent like you who is well-meaning and just wants to spend time with your grandchild.
On the other hand, I also know that there are many families in our area where grandparents provide most of if not all of the day-to-day childcare for a grandchild. If you live with your grandchild you may be in a very strong position to be able to attempt to ask a court for conservatorships rights. You have likely encountered some degree of difficulty whether in obtaining school records, registering your child for school, taking your child to the doctor, or performing any other formal action without being a legal conservator of your grandchild.
If you have found out that it is necessary to be able to take care of a grandchild for you to be named as the legal conservative of him or her then today’s blog post is for you. I’m going to share some information about grandparents’ rights in Texas and to provide you with an update on legislation that has been proposed during this past legislative session in our state regarding grandparents’ rights and how you and your family may be impacted by the law in our state.
A background on grandparent Visitation rights
To request Visitation rights about your grandchild, you must be the parent of the party who has primary custody love your grandchild or be the parent of the party who is in jail or deceased. Currently, you may not request visitation rights if both your child and your grandchild other parent have had their parental rights terminated. This means that if your grandchild has been adopted or is in CPS custody you may not file a lawsuit for Visitation rights.
The reality of your situation may be that a court essentially leaves you and your grandchild’s parents to sort out the situation between yourselves. Of course, this in many ways is the preferable situation because you all know the circumstances of the facts of your case much better than a family court. However, some of you likely find yourselves in undesirable situations where you all are not able to sort through your problems together and create a solution without intervention from a judge. in that sort of case, you may have no option but to go through the Courts to win visitation rights.
When it comes to winning a lawsuit and even being able to bring a case before a judge, you first have to meet the guidelines that we set forth earlier in this blog post. If you are the primary caretaker of your grandchild but only want Visitation rights then you and your attorney have to be able to show that if a parent attempts to restrict your visitation with Your grandchildren. There is a presumption in Texas that you’re grandchildren’s parents act with their best intentions in mind regarding the decisions that are being made on their behalf. Therefore, you must have evidence that you’re being denied Visitation is not in the best interest of your grandchild.
In case you are wondering, it is not sufficient to merely present evidence that you miss your grandchildren and vice versa. The harm being done to your grandchild must be more than hurt feelings or a desire to see one another. Rather, the extent to your relationship must be ingrained into your grandchild or you must be able to show that your grandchild is being neglected by their parents. Neglect has a legal definition that involves placing your grandchild into or failing to remove your grandchild from circumstances that could foreseeably lead to physical or emotional harm done to your grandchild.
What are the recent events regarding Visitation based legislation in Texas?
In 2019, a bill was filed that was intended to make things more palatable and better for many grandparents in our state like yourself who are being placed in a situation where they are unable to visit with their grandchildren. In many cases, you may be denied Visitation by your child’s ex-husband or ex-wife. The bill would address a point that we made earlier in today’s blog post: that in many ways it is easier for you as a grandparent to obtain custody of your grandchild than it would be for you to obtain Visitation rights.
There is a high burden on grandparents like yourself simply to win Visitation rights in court absent fairly dramatic circumstances. One issue that we have not discussed in great detail so far today is that many times you will have to hire an expert witness to be able to testify that your grandchild is being significantly impacted negatively if this Visitation lawsuit of yours is not successful. Not only will this cost you money but it is still a very high burden to reach even with the assistance of a doctor.
What the proposed legislation would change is that it would remove the requirement for one of your grandchild’s parents to be either dead, incarcerated, incompetent or a stranged for you to be able to seek legal Visitation rights. It would also remove any requirement that a grandparent like yourself provide expert witness testimony to meet the high burdens associated with a Visitation case.
A real-life example of grandparents who were successful in obtaining Visitation rights about their grandchildren
as we have already discussed today it can be difficult to win Visitation rights for your grandchildren. With that said, I did want to provide you with a real-life example that I’m aware of where grandparents were able to successfully argue for Visitation rights in Texas family courts. I would like to share their information with you so that you can get a better understanding of what favorable circumstances look like and what you might need to do to set yourself up for success were you to attempt to win Visitation rights regarding your grandchildren.
The case involved two grandparents who were very involved in the lives of their maternal grandchildren. The grandchildren in this case lived with the grandparents while the parents looked for a house to move into while the family was moving to Texas from another state. On top of that, the grandparents in this story provided financial assistance two their grandchildren and the parents of the grandchildren while they attempted to save up money to purchase a home.
Eventually, the family did purchase a home very near to the grandparents and the grandparents had regular contact with their grandchildren. As it happens this involved weekly visits, holiday visits, and even overnight visits at the grandparent’s home. School activities and other extracurricular endeavors were attended by the grandparents in addition to regular meals being prepared and things of that nature. It became obvious to anyone watching that the grandparents, in this case, were more than just grandparents. They had taken on much of the day to day parenting responsibilities about their grandchildren.
The parents of these grandchildren had a bad relationship and it was obvious to anyone who had ongoing interaction with the family that the parents had a drug problem. For this raising, the children ended up staying with the grandparents quite frequently. In the lawsuit filed by the grandparents, friends of the family testified to their knowledge of the situation involving the parents and their erratic behavior in the continued contact that the grandparents had with their grandchildren.
Suddenly, the mother of the children passed away and the children’s father developed a plan to move back out of state to live with his parents. As a grandparent yourself, I’m sure you can imagine how fearful these Texas grandparents were at the prospect of losing any contact with their grandchildren. In this case, they sought conservatorships rights due to the circumstances of their case and their ongoing and close relationship with the children. A judge would need to determine whether the grandparents being named as a conservator would be in the best interests of those children.
Fortunately for the grandparents, a court did find that were the father to deny them possession or access to the grandkids that would significantly harm the health and well being of those children. While the grandparents were not given primary conservative shipwrights they were provided with designated periods of possession throughout the year including certain weekends, longer visits during the summer, and mandated communication between the grandchildren and their grandparents over the phone and using video chat.
Hopefully, this provides you with some degree of confidence in your ability to win similar rights if that is your desire. Obviously, as with any family law case, so much of what you attempt to do about winning custody or Visitation rights about your grandchildren depends on the specific circumstances of your case. You should prepare with your spouse as well as with a family law attorney before filing a lawsuit to give yourself the best possible chance at success.
Preparing for a grandparents case in Texas family court
First of all, I think it is essential for you to have an experienced family law attorney by your side throughout a case like this. Bear in mind that not only is a case like this emotionally taxing but it is also complicated and depends on your ability to present evidence about the law and to your lives in a precise manner. Because so much depends on this aspect of the case I would not recommend attempting to move forward with a case like this without representation.
You should then consider what sort of rights you are interested in pursuing about your grandchildren. Are you wanting Visitation rights where you are provided designated periods during the year where you can spend time with your grandchildren? Or do you believe that you are in a position where you would be able to take on the responsibility of being the primary caretaker for your grandchildren? You need to consider your specific circumstances and what Ave provides your grandchildren with the best possible chance at leading meaningful lives.
Finally, I recommend that you attempt to work out the solution with your grandchild’s parents before going to court. I know it may seem like a long shot to be able to find success in this regard but the fact is that sometimes having a calm and rational discussion with your grandchild’s parents may allow you to come up with a solution that saves you all a great deal of time, money and stress. Before you hire an attorney and go through with a legal case it pays to have an honest discussion with your grandchild’s parents to see if anything can be worked out between yourselves.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material presented in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations can go a long way towards helping you and your family learn more about the law and how your circumstances could be impacted by a child custody or divorce case.