As a grandparent, there are few things in life more rewarding than spending time with your grandchildren. These are precious moments that you want to take advantage of to the fullest. You can remember the first time you held your grandbaby in your arms and saw that sparkle in their eyes. Their first words, first steps, and first day of school soon followed. Your intention was and is still the same- to be a big part of their life. Everything in your life and theirs was lining up that way and you were able to spend all the time that you wanted with your grandchild.
That is, up until a few months ago. Your son recently went through a difficult divorce. His ex-wife was a big fan of yours and you appreciated the opportunity to spend time with her and your grandchild. However, since the divorce, she no longer has any time for you. She doesn’t return your phone calls or text messages. She’s moved, and you don’t know where she lives. On top of that, your son’s new girlfriend seems to have taken charge of your son’s life and those of your grandchildren.
Part of that “take charge” attitude has been an unwillingness to allow your grandchildren to spend any time with you. You have called them- no return phone calls. You have tried to drop by the house after school to say hi- nobody’s been home. Letters with no replies, holidays have been missed. You are starting to get worried. Not necessarily about the safety of your grandchildren but about whether you are going to be able to spend time with them moving forward.
Now that things have progressed to the point where you are not sure how you are going to see the kids moving forward you would like to know more about your rights to visit with the grandkids. You’re not even sure if Texas honors grandparents in this way. So, you’ve done what seems to be the best possible move for you all at this point. You schedule a free-of-charge consultation with knowledgeable family law attorneys with the Law Office of Bryan Fagan. Once you shake our hand, sit down and state your case to us, here is what we would tell you about your rights as a grandparent in Texas and how best to apply them to a case in the family courts.
Parents’ rights are superior to grandparents
Even if you are a grandparent who has been there since day one with your grandchild you are not on the same level as a parent in terms of your rights. Parents have specific rights (and duties) under the Texas Family Code regarding their relationship with their children. Grandparents, on the other hand, have no established rights under the Family Code. For a grandparent in your situation that can be a difficult piece of news to take in and digest.
There is an opportunity for a grandparent like yourself to file a petition for visitation with your grandchild, however. This would need to be done in a family court in the jurisdiction where your grandchild or you reside. Or, if there is already an open child custody case or a prior child custody case that was filed you will need to file a case through that county. Courts will assess your petition for grandparent visitation and can decide based on what is in the best interests of your grandchild. This was a very general overview of a grandparent-grandchild visitation case. As with any family law case, there are almost certainly going to be issues that can impact your case beyond this basic overview.
Family court judges have several factors to consider when determining whether granting you court-ordered visitation is in your grandchild’s best interests. Sometimes it can be difficult for a grandparent in your position to fully take in that the decision on visitation will be made based on what is in your grandchild’s best interests and not what is in your best interests. Before we jump into what I likely to happen in your case, you should know a little something about the rights of grandparents under prior cases like your own.
The main grandparents’ rights case in the United States is a case called Troxel v. Granville. We won’t quiz you on the case, so the names aren’t all that important but what the case says is. The Supreme Court of the U.S. stated in this case that grandparent visitation rights are important. However, they went on to say that the rights of a grandparent to be able to visit with their grandchildren take a backseat to the best interests of their grandchildren as well as the relationship between the parent and child.
What this case indicates is that a Court needs to pay close attention to the views and opinions of the parents when it comes to visitation with the grandchildren. If a parent does not want a grandparent to visit with their children, then that should matter a great deal to a Court. However, the Court would need to consider the specific reasons that the parent has for being against the grandparent visitation and balance that against what is in the best interests of the grandchildren.
The best interests of your grandchildren are the focus of these types of family law cases. There is no presumption in Texas that your grandchildren being able to visit with you is in their best interests. Rather, the presumption is that a parent makes decisions that are in a child’s best interests. This presumption applies even when it comes to something like denying you visitation time with the grandchildren. So, what you need to figure out is how to pursue visitation rights with your grandchildren despite the challenges.
An overview of grandparent visitation issues in a Texas child custody case
A grandparent may not have specific rights concerning their grandchildren but you as a grandparent do have a right to petition a family court to establish visitation rights. If you have already been to court and have had visitation rights established, then you can also ask the court to modify those orders if circumstances have substantially changed since the last time that you all were in court.
As we have talked about several times in today’s blog post so far, what you need to be able to do is prove to a judge that awarding your visitation rights is in the best interests of your child. This can be a high hill to climb considering the presumption in favor of parents making decisions on behalf of their children. The bottom line here is that parents are presumed to make decisions which are in the best interests of their children. Your job, if you want visitation rights, is to overcome this presumption.
The statutes in the Texas Family Code which relate to visitation for grandparents allow for visitation to occur when at least one parent still has parental rights concerning the child and you can show that denying you visitation with the child is against his or her physical health and emotional well-being. You also need to be the parent to one of your grandchild’s parents. Finally, your grandchild’s parent must have been incarcerated for three years, declared mentally incompetent, or has died.
Let’s go through an example to better illustrate this situation. Let’s say that you bring a petition for grandparent visitation in your local family court. The judge denies your petition for visitation. This denial was despite you being the primary caretaker for your child while your daughter (the grandchild’s mom) was sick. Unfortunately, your daughter died of an illness a few months ago. Since her death, your grandson’s father has cut off all contact between your grandson and you.
What the judge said in his decision was that he understood where you were coming from and appreciated the effort that you were putting into this case. However, the decision of the father was important to consider, as well. Additionally, the court found that you were not able to prove that your grandson’s father was unfit to care for him nor that your grandson’s emotional or physical health would be harmed from not being able to have visitation time with you.
With that example in mind, we then should ask and answer the question: when you as a grandparent be awarded custody of your grandchild? Custody is not the same thing as visitation. We can all appreciate how a parent has the final say in most situations when it comes to how he or she raises their children. The courts cannot get in between how a parent raises their children unless it is determined that the parent cannot meet the needs of the child.
This is where you could step in as a grandparent if you have a grandchild in need. You would need to show a court that your grandchild’s home presents a concern regarding his or her physical or emotional well-being. Violence in the home, neglect in the home, a history of CPS intervention, and things of this nature are all that we have in mind when it comes to a parent not being able to meet the needs of a child.
The other situation that could arise where you can come in and gain custody over your grandchild is if your child and the other co-parent of your grandchild both agree to you being named as a conservator. This situation could play out if both your child and their spouse are going to prison for an extended period, have an overseas obligation that will put them across the pond for an extended period, or any other reason like this. If both parents believe that they will be unable to discharge their obligation to care for your grandchildren you may be in line to act as a custodian.
Additionally, you can intervene in a case where one of your grandchild’s parents has already filed a custody lawsuit of their own. You cannot bring an original custody lawsuit on behalf of a grandchild. Grandparents do not have this right in Texas. Custody must be requested as part of an existing custody lawsuit brought by a parent of your child or by the state of Texas.
What you need to keep in mind no matter what your goals are in a family law setting for your family is that any rights you have concerning your grandchildren are secondary to the rights held by your child and their co-parent. When your grandchild’s best interests are determined that is when a court will be able to tell you whether you will be named as a person who has custody rights.
What steps should you take when you want to go forward with a visitation case?
Deciding to pursue visitation as a grandparent should not be taken lightly. Many times, a grandparent will attempt to step forward to do something good for their grandchild but he or she will not have sufficient knowledge of what they are getting themselves into. Mostly, grandparents will sometimes overestimate their likelihood of success in a case. Then, when things do not go their way, they will be disappointed and feel like they did something wrong.
This is not the case, at all. The simple truth is that you have an uphill climb in front of you if you want to gain visitation rights with your grandchildren. However, that does not mean you shouldn’t try. Go back to what we talked about at the beginning of our blog post today. You love your grandchildren and want what is best for them. If you believe that you should play a central part in the best life for your grandchildren, then you should consider stepping up and pursuing a visitation case.
What does this mean? First, it means collecting as much information as you possibly can. This blog post is a great place to start but you should not stop here. Read as much as you can. Meet with an experienced family law attorney from the Law Office of Bryan Fagan. Our attorneys have had success serving grandparents who have gone through this process in Texas. We know what it takes to help you be successful in a grandparent visitation case. You can ask our attorneys questions and we can give you information and answers which will help guide you towards a more successful attempt to gain visitation rights.
If trying to seek custody rights is where you are right now, then you need to act within a certain amount of time to give yourself the best possible opportunity to be successful in pursuing a case. When your grandchild is already living with you then you should figure out how long he has been in your home. If it has been at least six months before the date on which you file your custody case, then you are in good shape. If your grandchild were to move out and you still want to pursue custody, then you would need to do so within ninety days of him moving out.
When you win a grandparent custody case that puts you in a position like a parent after a divorce. Your grandchild’s parents may be ordered to pay you child support and there may be periods of visitation set up for them to be able to spend time with your grandchild during the year. Once you gain legal custody rights that opens the door to you being able to do things like take your grandchild to the doctor, enroll him in school, or do other things like this.
Visitation and custody are both distinct goals to have. You need to think about which one you are prepared to take on. Visitation would be like what you probably had with your grandchildren previously. You would be able to spend time with them, but you would have no legal responsibility to care for them. Custody, on the other hand, means that you would have more responsibility but also more rights when it comes to the life of your grandchild.
In any event, having an attorney is a key part of a grandparent’s success in this type of case. You do not want to put yourself in a position where you begin a case but do not have the legal backing to continue. Or you may start a case but find that you are unprepared to counter the legal arguments of your child or their co-parent. This case is already an uphill climb for a grandparent. Do not put yourself further down the mountain than you need to. An attorney with the Law Office of Bryan Fagan would be honored to speak with you about your case so that you can be better equipped to move forward with a grandparent visitation case of your own.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as what can happen if you file a grandparent visitation case.