An attorney in our office recently settled a case where two grandparents were seeking court approved and mandated visitation with their two grandchildren. The circumstances for these folks were tragic to say the least. Their son, the father of both children, is serving time in prison for the next twenty-five years. The children’s mom is facing criminal charges of her own but is not currently behind bars and acted as the opposing party to our clients.
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.
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.
Litigation and Mediation were Required
We filed a Petition in Suit Affecting Parent Child Relationship on behalf of our clients in order to formally make this request with the Court and put the mother and father on notice of the grandparents’ desires.
Along with this Petition, our clients wrote an affidavit (sworn statement under oath) to accompany it. The affidavit explained in no uncertain terms that our clients were concerned for the wellbeing of their grandchildren for among other reasons that due to the instability of their home life the children needed their grandparents as a port in the storm during these tumultuous years of their lives.
Eventually, our opposing party hired an attorney and it so often happens the court in which our case was being held required the parties to attend mediation prior to any hearing before the judge.
Mediation is a process in which the parties agree to have an independent actor (typically a family law attorney themselves) assist them in settling their case without the need of having a judge do so. We advise our clients that mediation offers them the opportunity to arrive at settlement that will better suit both sides than if they were to roll the dice and have a judge decide the matter.
Our grandparents were cautiously optimistic going into mediation that they would be able to settle the matter with the end result being that they would earn their sought after visitation. Their faith in the process was rewarded as the parties agreed to have our clients receive a weekend’s worth of visitation per month as well as multiple phone calls per week.
Certainly the grandparents would have liked to have gotten more time. However, bearing in mind the significant obstacles to their being able to get a better result from a judge, the case settled successfully in mediation.
Grandparents certainly play integral roles in the lives of children all over the State of Texas. If you haven’t been able to see your own grandchildren for any reason, please contact our office to schedule a consultation. The attorneys with the Law Office of Bryan Fagan, PLLC are eager to meet with you and discuss your options as it pertains to visitation.
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