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Can an Aunt File for Visitation Rights? A Guide for Extended Family Visitation in Texas

Infants have a remarkable way of fostering joy and strengthening familial bonds, drawing relatives closer together. My spouse and I are fortunate to have family members residing nearby, offering a network of support and occasionally providing invaluable childcare with boundless love. However, a pertinent question arises: can an aunt file for visitation rights, particularly if her behavior isn’t always commendable?

Some clients have family members who are nagging, a nuisance, threatening, and sometimes a danger to their child. This may not have always been the case, though. 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 family members. 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 and what should you do when your child’s extended family wants visitation?

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. Throughout my life, I’ve discovered that my thoughts and actions often diverge from those of others I encounter. I actively restrain my advice, preferring to inform potential clients solely about their legal options under the law unless they expressly request otherwise.

Can Grandma Demand Time With Your Child? Can an Aunt File for Visitation Rights?

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’s 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 responsibility.

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.” Can an aunt file for visitation rights? Not if it’s not in the child’s best interest. Likewise, no one would suggest that you send your child home with grandma just because she’s grandma if:

  1. she has a problem with alcohol. Or
  2. if she’s married to husband who is a registered sex offender.

In Texas, just because someone is a grandparent or 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 otherwise.

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

So, can an aunt file for visitation rights? 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:

  1. the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or
  2. 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:

  1. Time
  2. Money
  3. 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 the court.

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:

  1. Certain individuals will not have one-on-one time with the child
  2. that they will not be used as a babysitter, or
  3. 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:

  1. mental health diagnoses
  2. substance abuse problems
  3. criminal records
  4. abuse

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. 

Conclusion

The complexities surrounding extended family visitation rights in Texas underscore the importance of understanding legal frameworks and advocating for familial relationships. While the law generally prioritizes the best interests of the child, navigating the nuances of visitation rights for aunts and other extended family members can be challenging. It becomes imperative for families to seek legal counsel and explore mediation options to ensure that the child’s well-being remains paramount while also preserving meaningful connections with extended family members.

Ultimately, fostering healthy familial relationships requires a delicate balance between legal obligations and emotional considerations. While the legal landscape may vary from state to state, the underlying principle of nurturing familial bonds remains constant. By staying informed and proactive, families can navigate the complexities of visitation rights and cultivate environments where children can thrive amidst the support of their extended family network.

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