Let me begin by telling any of you grandparents reading this blog post that you do not have a lot of rights when it comes to being able to intervene in a situation involving your grandchildren. If you believe that your grandkids are at risk of being harmed, or are being harmed in some way, your first instinct may be to jump into the situation and attempt to gain custody of them. The simple truth is that this is very difficult to do in Texas. Our legislature and the family courts in our State do not make this an easy process for you or any other grandparent in Texas.
There are really two areas that you and most any grandparent in your shoes are likely concerned with: custody and visitation. Custody is actually referred to as conservatorship in the Texas Family Code. These are the rights and duties that an adult (typically a parent) can exercise on behalf of their child. On the other hand, you have visitation which is made up of the time that you are able to be in physical possession of your children. That may sound like how you would refer to a piece of property, but for family law purposes that is the terminology that is used.
Let’s open up today’s blog post by discussing what conservatorship and visitation mean to you as you begin to look for answers to your own situation involving your grandchildren.
Conservatorship in a grandparents’ rights case
The biggest obstacle that a grandparent has when it comes to being able to file a lawsuit in regard to their grandchildren is referred to as “standing.” Specifically, only a person who has had actual care, control, and possession of the child for at least six months ending not more than 90 days before the date the petition is filed, has standing to bring a family lawsuit on behalf of a child. This is a high bar to meet for most grandparents.
What does actual care and control of a child mean? In some courts that have meant when a parent to your grandchild leaves the child in your possession for at least a six-month period of time. That could mean that the parent is in prison. That could mean that the parent just was not able to care for the child and left on a whim. Some courts have lessened the actual degree of control that is necessary to include grandparents that have had continuous contact with their grandchild over a long stretch of time. So long as a meaningful relationship is apparent that may also be enough for some judges.
Be prepared to show that your grandchild resided with you for a good portion of a six-month period. Some courts will not require that the six-month period of care and control be continuous. Their concern will be with where your grandchild’s principal residence was during this six-month time period.
Is there a significant risk of impairment to your grandchild’s physical health or emotional development?
If you do not meet the requirement set forth in the above section regarding continuous care of your grandchild over a six month period, you may still may be able to bring a lawsuit if you can show a court that your lawsuit has merit because of a significant risk of harm to your child’s physical health or emotional development.
To argue this position you cannot file a lawsuit and attempt to become a possessory conservator of your grandchild. You would need to file suit asking to become the primary caretaker for him or her. In the event that you have a great deal of past contact with your grandchild, you may be able to get permission from a court to intervene into a lawsuit that is already pending regarding conservatorship of your grandchild.
What is the parental presumption and how does it affect your ability to become a conservator of your grandchild?
Once you clear one of the above two hurdles and have been declared by a court to have the standing to bring a family lawsuit on behalf of your grandchild or intervene within an already existing case, there is another significant hurdle to clear. If you are making an argument that no parent of your grandchild should be able to continue on as a conservator you would be making an argument that goes against the parental presumption.
The parental presumption is that it is presumed in Texas that a parent of a child should always be given preference when it comes to being named as the primary conservator of one of their children. You would need to be able to prove that naming a parent as the primary conservator of your grandchild would not be in that child's best interests. Impairment of your grandchild's physical health or emotional development (sound familiar) would need to be likely in order to make this argument.
From my experience, this is a hard argument to make. Courts are generally not satisfied by evidence that you as a grandparent would be a better caretaker and conservator of the child, than would your child's parent(s). Bad acts in the past are not enough to overcome this presumption either. For example, if your daughter had problems in the past with substance abuse but is now attending meetings for this and has been sober since the birth of your grandchild you probably don't have a strong case to make this sort of argument.
Is there a history of family violence?
A history of family violence within the family of your grandchild that involves one or both of his parents is a game changer. The presumption that favors parents being named primary conservators is rebutted in this type of situation. Additionally, if your child has relinquished care of your grandchild to you on a voluntary basis then that, too, would rebut this presumption. That relinquishment must have been for one year or more, with at least a portion of it having occurred within 90 days of your filing of this lawsuit.
Visitation (Possession and Access) Essentials in a Grandparent’s Rights case
Let’s shift gears to talk about visitation rights that grandparents have in Texas family law cases. To do that, we must first consider a Supreme Court decision that was handed down about thirty years ago from the high court in Washington D.C. The issue decided in this case (called Troxel v. Granville) was whether or not any person at any time could file a petition for visitation rights on behalf of a child. The court, as you may imagine based on what we just spent time discussing above, found that for a parent to have to disprove that another person has a valid claim to visitation rights would be unfair. Score one for parents, and one against grandparents.
Based on that decision from the federal Supreme Court, the Texas Legislature made a change to the Texas Family Code and created a new presumption that a parent is acting in their child’s best interests when he or she denies a grandparent visitation. As a grandparent, you must show that harm has resulted as a result of the parent denying you visitation with your grandchild.
When you file a lawsuit on behalf of your grandchild you must now attach an affidavit (statement under oath) that details why your being denied visitation with your grandchild would present a significant impairment to that child’s physical health or emotional well-being. If what you state in your affidavit meets the burden that we just went over your case can proceed. If not, your case will be dismissed and you will not be able to move forward as planned.
A hearing or trial will be held where you will have to present evidence that shows that your continuing to be denied visitation of your grandchild would significantly harm that child’s physical health or emotional well-being. Simply showing a court the ways that your grandchild would benefit from having visitation with you is insufficient. There would need to be, or preferably (for your case’s sake) should already be harm shown to have been suffered by your grandchild. Sad grandparents or sad grandchildren are not enough to meet this very high burden.
What evidence is needed besides testimony from a grandparent?
Many grandparents have good cause (in their minds) to bring a lawsuit on behalf of their grandchildren but don’t really know where to start. Sometimes the only evidence that they will have is their own testimony regarding the harmful effects of their visitation attempts being denied by their grandkids’ parents. The question that needs to be asked at that stage is whether or not this sort of testimony is enough to move forward with a family law case.
On some levels that testimony may be the best evidence that you as a grandparent can get. It isn’t as if you can go to your grandchild’s home, pick him up and take him for a psychological exam that shows the harm that has befallen your grandchild due to their not being able to see you very often, if at all.
Given this probable state of affairs, you can likely have a court-appointed professional assigned to your case in order so that an interview of your child can be conducted. That person will come up with a recommendation for the court and can testify in a hearing if necessary as to their findings and opinions. Your attorney may want to set an initial hearing to request that a professional like this be appointed to your court. Often times these folks will need to request medical and school records to get a full picture of any potential harm that your child has suffered.
Your best course of action depends on your individual circumstances
With all of that said, it is apparent to me that depending upon your individual circumstances you may need to take one of a few different routes. The first route would be to request visitation rights through a petition with the court. At that point, you will serve your child’s parents or parent and provide him or her notice of your lawsuit. From there, you can and should request mediation with that parent to determine if you all can negotiate a visitation arrangement.
For example, I represented two grandparents in a case not too long ago where they were attempting to win custody of their three grandkids. The grandkids were in a bad set of circumstances at home. Trouble was these grandparents had very little contact with their grandkids because of the parents not allowing visitation.
What our clients and I did was negotiate some orders in mediation where our grandparents got some visitation set up with the parents. From there, they built up more and more time with the kids. Later on, they eventually filed a lawsuit requesting conservatorship rights. When it was all said and done they were successful in being named primary conservators of their grandkids. This meant that while the parents retained rights to the kids, our clients were able to move their grandkids into their home and take over as primary caretakers and decision makers.
It was not an easy process and did take some time. However, they played the hand that they were dealt about as well as possible. The end result was a great outcome for both our clients and their grandchildren.
Questions about grandparent rights in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered 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 here in our office. These consultations are a great opportunity for you to ask questions and receive honest feedback about your specific case. We serve on behalf of the families of southeast Texas and do so with a great deal of pride. Thank you for your time and consideration.
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