As a grandparent, one of the toughest parts of the "job" is that of having to sometimes watch your children make decisions regarding the well-being of your grandchildren that you do not disagree with. Sometimes that means looking the other way when your child puts your grandchild to bed too late or too early. You may have a different perspective than your child when it comes to appropriate forms of entertainment or even what to feed the child. These are standard disagreements that can take place in any family.
However, sometimes the disagreements that you may be having with your child regarding how he or she raises your grandchildren can relate to subject matter that is a little more serious. Those disagreements can take on added importance or even emotional depth if you were a child who has been withholding visitation from you. The attorneys with the Law Office of Bryan Fagan have had many grandparents over the years walking to our office to ask questions about whether their child can withhold visitation time with their grandchild from them.
The simple truth is that in Texas, parents are presumed to act in the best interests of their children when it comes to the decisions that they make regarding their children. That includes decisions involving withholding visitation from you with your grandchildren. Even if it is something that you disagree with and maybe harm your grandchild, the law presumes that your child is acting in the best interests of your grandchild. This is because parents are given a great degree of latitude in Texas when it comes to making decisions for their children.
This is true whether you like it or not. So much of life is comprised of making peace with what you don't like and trying to go about effectuating change in the areas where change is possible. From my experience, grandparents oftentimes must figure out which one of those traits they will need to employ regarding the subject matter related to their grandchildren. Many grandparents don't want to rock the boat when it comes to the lives of their grandchildren. On the other hand, if you feel strongly that you need to be playing a more significant role in the life of your grandchildren then you probably want to learn more about how to go about that process.
Whether you have a significant relationship with your grandchild or you have been denied the opportunity to do so by your parent, it is worthwhile to understand what rights you do have regarding being able to pursue custody of your grandchild in a legal scenario. Make no mistake: custody of your grandchildren is a lot different than visitation. When you are trying to become a custodian or conservator of your grandchildren you would be asking a family court to put you in a position where you can make decisions on your grandchild's behalf and have a certain level of responsibility to care for your grandchildren daily.
This would be asking a lot more out of you than simply popping in to visit with your grandchild every so often to say hello and drop off a gift. Rather, in trying to establish custody rights about your grandchildren you would be attempting to become apparent to your grandchildren in the eyes of the law. While winning custody rights to your grandchild is not synonymous with adopting your grandchild it is the next closest thing. This is something that you should be aware of and that you should prepare for regarding coming forward and attempting to help your grandchildren in a bad situation.
Is your grandchild being harmed by being denied visitation with you?
On a subjective level, I'm sure that you would argue to anyone who would listen that your grandchild is suffering harm because he or she does not currently can engage in visitation with you. I don't know that I've ever met a grandparent who would believe that their grandchild is better off not having contact with him or her. It is reasonable for you as a grandparent to believe that you have some sort of connection with your grandchild no matter your history and that you have some wisdom and love to share with them. If you didn't believe this way then I don't think you would be reading today's blog post.
With that said, in Texas, you would need to be able to show more than your honest belief that your grandchild is being harmed by not having contact with you. Rather, you would need to be able to show a family court judge that your grandchild is suffering demonstrated harm by not being able to visit with you regularly. This goes beyond a feeling in your heart, no matter how legitimately felt, and speaks to something that can be demonstrated in the life of your grandchild on a physical, emotional, or mental level. You need to determine the true extent of the harm suffered by a grandchild when it comes to being denied visitation with you.
What can be difficult for many grandparents to stomach, understandably, is that the actual harm to your grandchild is minimal when they are denied visitation with you. this is a reality that some grandparents will have to come to terms with when it comes to a legal case involving their grandchildren. I don't say this to write in your parade or to otherwise be dismissive of your attempts to win custody rights to your grandchildren. I do mention it, however, to clue you into the fact that it is difficult to win custody of grandchildren and impossible to do so if your grandchildren’s lives are no different with you in it than with you out of it.
Before you consider filing what can be expensive and time-consuming like OK's, you need to think critically about your chances of being successful in showing a family court judge that you need to have custody rights to your grandchildren. Thinking in this way not only can save you time and money but it will also prepare you much better for a case in a Texas family court. Make no mistake, the ability for you to when this type of case depends upon the evidence that you can show a family court judge. If your case relies upon a lot of he said, she said type of evidence then you are very unlikely to be able to win custody rights to your grandchildren. Remember that the overarching principle in Texas is that your grandchild's parents are acting in their best interests when it comes to denying you visitation. It can take extremely convincing evidence to be able to overcome that presumption.
The other attribute of a grandparent custody case that you need to bear in mind from the very beginning is that you and your child will not be on level ground when it comes to what you have to show in a courtroom to win your case. For your child to win their case all they must do is satisfy the judge's belief that he or she is acting in the best interests of your grandchild in whatever the subject matter at issue is. This is not a very high bar to meet and is one that your child could meet easily, potentially.
on the other hand, you would need to be able to show that there is a serious wrong being committed in this situation by your child withholding visitation. You can't just go to the family court judge and complain about how your child prepares meals for your grandchild. You also can't go and tell the family court judge that you are a better parent than your child and then list out the reasons why. Rather, you need to have specific evidence to show that your grandchild is being harmed mentally, physically, or both and that the best solution to the problem would be rewarding your custody rights and duties.
What I am mentioning here is that you should not be surprised to learn that grandparents lose custody cases with regularity even when they are better custodians or conservators, potentially. You may be the best parent or grandparent in the world, but that doesn't mean that you should automatically be made the conservator of your grandchild. Even average or below-average parents should not lose custody of their child unless it is for word very good reason. Simply being a better parent than your child on a relative basis is probably not going to win your grandparent custody case.
Rather, you need to be able to think strategically about how you can go about winning this type of case. For the remainder of today's blog posts from the Law Office of Bryan Fagan, we are going to share with you our thoughts on how to win a custody case regarding your grandchildren. Hopefully, you can take the information provided in today's blog post and translate it to your circumstances. Whether that leads you to believe that you have a good chance at winning custody of your grandchildren, or not, you at least will be better positioned to move forward with this information in your back pocket.
Understand your child and their parent
the first place I would begin in a situation involving a grandparent custody circumstance would be to think critically about your child and their Co-parent. You would not be filing a grandparent custody case were it not for the fact that you believe that your child in their Co-parent is unfit to parent your grandchild. However, you need to understand that just because your child is seemingly unfit to parent your grandchild that there may be a Co-parent in the picture who is a good parent. The opposite may also be true where your child is a good parent, but it is the Co-parent that you take issue with. It is not enough to show a family court judge that one parent or the other is the bad apple. You are looking at a circumstance where you would need to be able to show that your grandchild is suffering harm and that you are best positioned to intercede as a custodian.
Another issue that sometimes arises in these types of custody cases involves a father who may not have even been adjudicated to be the legal parent to your grandchild. this means that your daughter may have had your grandchild with a man who is not legally adjudicated to be the father to your grandchild. This is more likely to be a situation when your grandchild is still very young. In any petition that you filed with the court, you can raise the fact that your grandchild in does not have a legal father. This can influence whether you even have to serve the presumed father with notice of your lawsuit.
In this type of situation, you should know in advance that even if you can show a family court judge that you are a better conservator to your grandchild than your child you may allow for the Co-parent to be awarded custody inadvertently. It pays to know what the situation looks like in terms of establishing parental rights so they can know how best to proceed.
Look critically at parenting history
The reality of a grandparent custody case is that you are going to have to be willing to cast a critical eye at the situation involving your child and grandchild to win the case. Add a minimum, a parent needs to be able to ensure that the decisions that they make on behalf of their child are geared toward keeping that child safe from harm. If there are examples in the life of your grandchild where their parent or Co-parent could not or would not keep them safe from harm then there would be potential sources of evidence that should be pursued in your case.
If your child or Co-parent is ever arrested for any reason, then this would certainly be evidence that you should use to help overcome the presumption that he or she is capable of acting in the best interest of your grandchild. Being arrested for drunk driving or a crime involving domestic violence would certainly tend to show a lack of good judgment on the part of your child or their Co-parent. While it can feel underhanded in some ways to use this type of evidence against them it would be irresponsible to not do so. Remember that we are talking about the best interests and the safety of your grandchild.
Domestic violence and drug use in the home can be necessary elements for you to assert in your case depending upon your circumstances. While it may trouble you to even think about what goes on behind closed doors in the House of your grandchild, there will being is very likely at risk if allowed to remain in a house where domestic violence or drug use is common. It is difficult enough to parent children when you are sober. It is downright impossible to do when you are intoxicated or otherwise in an altered mental state.
What are the consequences of your custody case?
If your grandchildren have a relationship with you, are doing well in your care, and generally have the sort of time with them that you would like it is important to consider whether to file a custody case. A risk of filing a custody case like this would be harming the relationship between you and your child. This can impact whether you would be able to see your grandchildren in the future and have a relationship with them.
On the other hand, if you believe that your grandchild is not safe with your child or their Co-parent then you probably need to consider filing a custody case regardless of the impact it could have on your relationship with either party. This probably begins with contacting an experienced family law attorney to learn more about the process of filing a petition in family court to win custody of your grandchildren.
Otherwise, your best bet may be to work with your child and their Co-parent in an attempt to help them improve their parenting skills. It is important to your grandchild's development that they be able to maintain a relationship with their parents. You should attempt to do everything you can to build and strengthen that relationship until it becomes clear that it is no longer in the best interest of your grandchild.
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