Grandparents often play a crucial role in family life, offering love, wisdom, and support to their grandchildren. However, what happens when they are denied access to these cherished young ones? This situation can lead to complex legal battles, particularly in Texas, where the laws governing grandparent visitation rights are intricate and nuanced.
Our law office recently handled a poignant case that sheds light on these challenges. Two grandparents sought our assistance to gain court-approved visitation rights with their grandchildren. This case not only highlights the emotional strains but also the intricate legal landscape surrounding grandparent visitation rights in Texas.
Presumption that Parents Act in the Best Interest of the Children
The case began in early July with a phone call to the clients in which our attorney told the potential client’s grandparents do not have an automatic right to visit their grandchildren if the children’s parents do not allow for it. It would depend on the facts of the case on whether they could obtain rights through the courts.
In our situation, the grandparents have had a relationship with their grandchildren since birth, but because of the aforementioned family drama the mother was not in favor of giving our clients time to visit the children.
The Texas Supreme Court has also articulated that the trial court must presume that a fit parent acts in his or her child’s best interest when considering the rights of a third party against a parent’s rights.In Re Derzapf, 219 S.W.3d 327, 333(Tex. 2007). This has also been codified under the Texas Family Code under section 153.433(a)(2).
Non Parent Standing
A grandparent (or basically any family member for that matter) must show they have standing to bring a case.
Texas Family Code102.003 lays out General Standing to File Suit in a Suit Affecting the Parent Child Relationship. Section 102.003(a)(9) and sections 102.004 are probably the most common avenues for standing.
102.003(a)(9)
a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;
This section was created to allow standing for those individuals who have developed and maintained a relationship with the child over time.
Texas Family Code Section 102.004
The Texas legislature has created another avenue of maintaining a lawsuit for close relatives under certain circumstances 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 development; or
- both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
An original suit requesting possessory conservatorship may not be filed by a grandparent or other person.
However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.
At first glance, it may appear that this is a somewhat easy hurdle to clear, especially for grandparents that have played an active role in raising the children, but in practice it is not so easy to prove.
In this instance, our clients provided us with photos of them with the kids from the delivery room through this past summer but we still were not able to tell them with any certainty that they would get the visitation time they sought.
Grandparent Visitation Rights: Litigation and Mediation were Required
In a challenging grandparent visitation rights case, we filed a Petition in Suit Affecting Parent Child Relationship on behalf of the grandparents, seeking formal court recognition of their desire to maintain contact with their grandchildren. This legal step was crucial, especially given the unstable family situation of the children.
To strengthen their case, the grandparents also submitted a detailed affidavit, asserting their vital role in the grandchildren’s lives and their concern for the children’s wellbeing amidst family turmoil.
As the case unfolded, it transitioned into mediation, a common procedure in family law where an independent mediator assists the disputing parties in negotiating a settlement without the need for a judge’s decision. The grandparents approached mediation with a mix of hope and realism, aiming to secure a tangible form of visitation rights.
Their efforts were fruitful; they successfully negotiated for regular weekend visitations and frequent phone calls with the grandchildren, a significant accomplishment given the complexities of the legal system and the potential for less favorable judicial outcomes.
This resolution not only served the best interests of the children but also highlighted the indispensable role grandparents can play in their grandchildren’s lives. The case exemplifies the importance of legal advocacy in navigating the intricacies of family law and underscores the potential of mediation as an effective tool for resolving such sensitive matters.
Final Thoughts
In summary, the case of grandparents seeking visitation rights in Texas highlights the complex interplay between emotional family dynamics and the intricacies of family law. It demonstrates the critical role of mediation in resolving such disputes and the importance of legal guidance in navigating these challenges. This case serves as a hopeful example for grandparents fighting to maintain their vital connections with their grandchildren, emphasizing the legal support available to uphold these precious family bonds.
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Other Articles you may be interested on regarding
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Frequently Asked Questions
What is Section 102.004 B of the Texas Family Code?
Section 102.004 B of the Texas Family Code pertains to visitation rights for grandparents and certain relatives under specific circumstances.
What is Texas Family Code Section 102.003 A )( 9?
Texas Family Code Section 102.003 A )( 9 allows a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months to seek visitation rights.
What is the Texas Family Code?
The Texas Family Code is a legal document that contains laws and regulations related to family matters, including marriage, divorce, child custody, and visitation.
What is Texas Family Code 102.005 5?
Texas Family Code 102.005 5 addresses specific conditions under which a grandparent or relative can file a suit for visitation rights and seek managing conservatorship.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
