Families are structured differently now than in previous generations. Since World War II, the "nuclear" family has been exhaustively discussed and written about. We now see families where parents are not always married, single-family homes becoming more and more prevalent, and extended family living and having an important role to play in the life of children. As our office can attest, children are being raised by my extended family and my step-family.
With this all being said, it is reasonable to ask grandparents' rights to visitation with the children that have been a part of their lives. Parents have certain rights and duties inherent in their relationship with their children and are protected under the laws of the State of Texas. Are the same rights and responsibilities made available to grandparents?
What rights do grandparents have to visitation with their grandchildren in Texas?
Suppose that you are a grandparent who has been out of your grandchild's life for years because either your child or your child's spouse has not wanted you involved. This has got to be extremely painful to have to deal with. The laws in Texas give great deference to parents and assume that whatever decisions they make regarding your grandchild, they are doing so with the best interest of the child in mind. This means that absent evidence to the contrary that you can be denied visitation with your grandchild by a court.
The rationale for this is that the State of Texas does not have a good enough reason in most circumstances to intercede into the private life of a family to create orders regarding grandparent visitation. If your child's parents are deciding for your grandchild, it is expected that there is a legitimate and warranted reason for doing so. This is not to say that it is impossible to be given visitation rights if you are a grandparent. This is particularly true if you are a grandparent who previously played a significant role in your grandchild's life, such as if you helped to raise the child or perhaps the child lived with you in your home.
This past year our office represented a set of grandparents who, through multiple cases, were able to win conservatorship rights to both of their grandchildren. Let's discuss their story.
A story in two parts: Grandparents achieve success in family law cases
Early in 2017, two grandparents came into our office to speak to us about representing them in a family law case. They had two grandchildren living with their mother and their mother's sister here in Houston. Their son, the children's father, was in prison, serving an extended sentence for a serious crime. The children's mother was likely to meet the same fate when her trial was held later in 2017 regarding the same offense that put their son behind bars.
Caught in the middle of all of this were our clients' grandchildren. These folks played a significant role in their grandkids' lives before their mother decided abruptly not to allow the grandparents access to the children anymore. The kids were distraught, as were our clients. They shared photos of family events beginning from the time the children were born, and it was clear that our clients had played a massive role in helping these kids grow up with some normalcy despite their difficult circumstances.
Our attorneys created a plan with these grandparents to establish a relationship with the children sufficient to warrant their bringing a family law case for visitation or conservatorship rights. This is a concept known as "standing." Not just anyone can file a Suit Affecting Parent-Child Relationship in Texas. To do so, you must show that you have significant contact with the child, i.e., a good reason to do so. Once we saw that we would deliver these past influential contacts, we moved forward and filed a petition to seek visitation rights for the grandparents.
As most SAPCR cases go, we attended a mediation before seeing a judge. We were fortunate to work with an experienced, brilliant mediator who helped our clients understand that just because they were not necessarily in a position to be named conservators of their grandchildren at this stage, it was not impossible to do so later on. Our clients settled on getting a weekend's worth of visitation with their grandchildren in addition to holiday time around Thanksgiving and Christmas.
Months later, after it was apparent that the children's mother was heading to prison, our clients came back and re-filed a petition to seek conservatorship rights over their grandchildren. This meant that they sought to share in the rights and duties in raising their grandchildren rather than having mere visitation rights. Before ever going before a judge, the children's mother agreed to allow a court to extend these rights to our clients. Our clients' son never answered the lawsuit and was thus prevented from weighing in on the situation.
Ultimately, our clients not only were named as joint managing conservators of their grandchildren, but they were able to win the right to determine the primary residence of their grandchildren. This means that they could choose where their grandchildren would be living primarily. This was an ideal situation, and while not every case can be like this one, many can and have been. It took equal parts good luck, good lawyering, and patience from the clients.
What factors would a court consider when determining whether or not to award custody rights to grandparents?
Suppose for a moment that our clients and their grandchildren's mother did not settle out of court, and the case had to be taken to trial. How would a judge approach the question of whether or not to award custody rights to a grandparent?
It is challenging to win custody rights to your grandchildren unless one of the parents voluntarily terminates their parental rights or the court determines either parent (or both) to be unfit. Past contact with the children, age, physical well-being, and future ability to care for the grandchildren are relevant factors that I believe a court would consider.
What we in the family law world see happen with some frequency is a grandparent raising their grandchild on an informal basis. This means that there has been an agreement in place (usually verbal) that allows the grandparent to care for a child while their parents are unavailable or unwilling to do so. These agreements can go on for years and years before a parent or grandparent seeks to formalize or change the arrangement. If you are a grandparent who has cared for your grandchild for years only to have a parent try to take them from you, that may be a situation where you want to file for court-ordered visitation, possession, and conservatorship rights.
Mediation- A great alternative to litigation and trial
The vast majority of family law cases in Texas never see the inside of a courtroom or proceed to a trial. This is mainly due to mediation's role in the negotiation process. If you have concerns about how long or how expensive a divorce or child custody case can get, then mediation is an alternative that may encourage settlement and shorten the length of your case. We will discuss this topic in greater detail tomorrow.
In the meantime, if you have any questions regarding your particular family law-related circumstances, please consider contacting the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. A consultation in our office is an excellent opportunity to learn more about the legal process and how it would impact your situation. We take great pride in providing information that can allow you to make good decisions on the next steps you can take to reach your goals, no matter what they might be.