Babies can be wonderful and often bring families closer together. Both
my wife and I have family member that live close by. Having extend family
can be wonderful they help provide a support system and sometimes free,
quality, loving childcare.
However, from some of the consults I have given I have learned that extended
family are not always so wonderful. For some of the people have come to
see me their experience has been just the opposite where certain family
members are nagging, a nuisance, threatening, and sometimes a danger to
This may not have always been the case. In some situations, this was a
result of a relationship break down. Mom and Dad decided not to stay together,
and getting time with the baby became a tug o’ war for the extended
Grandparents, Aunts and Uncles are often two of the categories of family
members we most commonly see clamoring for more time with a child. As a parent:
- what can you do?
What should you do when your child’s extended family wants
One thing that is hard for many of the people I meet with is that “should”
do and what you can legally do are not always the same. What I have learned
over the course of my life is how I think and act is often different from
other people I come in contact with. I try limit my advice by informing
potential clients to what their legal options are under the law unless
I am specifically asked otherwise.
It’s not uncommon to meet with people who have different perspectives
on should. For example, today I had back to back consults one with a father
and one with a mother. In the first consult with the father he had the
perspective that he should not have to
pay a child support and that the child was the mother responsibility. He believed the mother
had her own money and did not need any of his. In the consult with the
mother. She had a very different perspective that a child was a shared
I’m not really here to talk about the “should” under
Texas Law the lens that the court looks at things is what is in the “best
interest of the child.” Probably no one would suggest, that you
send your child home with grandma just because she’s grandma if:
- she has a problem with alcohol. Or
- if she’s married to husband who is a registered sex offender.
In Texas just because of if someone a grandparent or is a family member
does not legally obligate you to provide
visitation if you’re unwilling or uncomfortable, for whatever reason.
When you and the other parent agree on extended family visitation
If you and your child’s other parent, agree, you have very little
to worry about it does not matter whether you are together or if you are
broken up. The two of you as parents get to make rules regarding which
family members get to visit your child unless a court has made an order
Together or separated, if you as parents agree that certain family members
should not have time alone with the child, then those family members are
going to have a difficult time getting it. The only way for a non-parent to get
visitation with a child over the parent’s objections in Texas, is if they take the matter to court.
TEXAS FAMILY CODE SECTION 102.004
One avenue the Texas legislature has created for maintaining a lawsuit
for close relatives under certain circumstances is in section 102.004
of the Texas Family Code.
This section reads: 102.004 Standing for a Grandparent or Other Person
In addition to the general standing to file suit provided by Section 102.003,
a grandparent, or another relative of the child related within the third
degree by consanguinity, may file an original suit requesting managing
conservatorship if there is satisfactory proof to the court that:
- the order requested is necessary because the child’s present circumstances
would significantly impair the child’s physical health or emotional
- both parents, the surviving parent, or the managing conservator or custodian
either filed the petition or consented to the suit.
Reading this section, you will see this probably not going to be easy to
file or prove a case for non-parent visitation. In most circumstances,
non-parents would take it that far because of:
- High burden they would have to prove to win
This should ease you mind a little if they threaten you that they are going
to talk to a family law attorney or to pursue their rights in court. We
do get these cases but they are a small minority. If you and the other
parent are a united front that an individual should not see the child,
then such a case is much weaker and will be even harder to win.
Texas is a strong parents right state. Under the Family code parents are
presumed to act in the best interest of their children. This means when
parents are in court versus non-parents the law is weighted against the
non-parent. This burden must be overcome just to be on equal footing in
When You and the Other Parent Do Not Agree on Extended Family Visitation
When you and the other parent do not agree, you may run into problems.
Obviously, it’s much, much easier to keep a family member away if
you and the other parent both share the same opinion. When you do not,
there can be issues.
This is not because the family member you are concerned about gets any
extra rights under the law. If they take you to court, the standard under
Texas law is the same and still weighted towards parents. This means it
will still be hard for them to get court-sanctioned, visitation time with
your child. However, that does not mean, though, that your child’s
other parent cannot give some of their time to the questionable family member.
Maybe you are alright with that, and maybe you are not. If you are not
and thinking about trying get injunction against it in court this maybe
a difficult task for you and will be fact dependent.
There are a lot of different issues and moving parts in custody and
visitation cases, so you may want to talk to a Texas family law attorney about the facts
in your case. Some options may include:
1. Negotiating a No Contact Injunction Against Questionable Individuals
Custody decisions can always be determined by an agreement and, if you
can get your child’s other parent agree to keep certain individuals
out of the picture.
Even if the other parent does not agree with you it still may be possible
to negotiate an agreement that says:
- Certain individuals will not have one-on-one time with the child
- that they will not be used as a babysitter, or
- They will not drink alcohol around the child, etc.
There is a lot of flexibility when it comes to agreements. These can be
very customized when it comes to the facts of your case. However, should
things go to court then it may be harder to obtain what you want.
2. Going to Court
If you and the other parent cannot agree, you may have to go to court.
If the person you are trying to keep away has some bad facts, you may
want to show those to the court such as:
- mental health diagnoses
- substance abuse problems
- criminal records
Depending on what the facts are they may go a long way towards making an
argument that a person should not have contact with your child. A lot
of times, in cases where parents do not agree, a
nonparent will get visitation but only when the other parent gives up some of his or her time to allow
it to happen. This can be difficult to avoid, but, if you have a good
reason, there may be steps that we can take to prevent it from happening.
If you want to know more about what you can do,
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
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