As a grandparent, do you have an important role to play in the life of your grandchildren? Your grandchildren can look to you for guidance and support much as they would look to one of their parents. These grandchildren of yours have a special place in your heart and can hurt a great deal to see them suffer when you believe that your child or your child partner is not caring for your grandchildren in a way that is in the best interests of those grandchildren. Learning and developing boundaries with your child so that you are not trying to constantly critique and nitpick their parenting habits is something that many grandparents struggle with.
However, you may also be in a situation where not only do you disapprove of how your grandchildren are being raised but on top of that they are suffering from potential harm in the process. There is a difference between not approving of how your child and their partner are caring for your grandchildren and your grandchildren suffering harm because of that care. At that stage, you may feel like you need to step in and do something to protect your grandchildren and their best interests.
A worthwhile question to ask yourself in this situation is where you can start when it comes to this subject. While you may have some thoughts about proceeding through a court case or attempting to hire an attorney you may not be aware of the basic laws that come into play when a grandparent attempts to come into the life of their grandchild as a caretaker. Even if you are not interested in necessarily becoming a caretaker or conservator of your grandchildren you may want to know more about how you can gain formal visitation in their lives. This is the right place for you to be if you have concerns like that.
You don’t want to be in this position but want to do right by your grandchildren
Most grandparents across our state and country would not be in a position where they would need to consider filing a lawsuit against their child or their child partner for visitation or possession of their grandchildren. That is not even to mention the possibility of filing a lawsuit for conservatorship rights and duties. Rather, in a typical scenario, you and your child would be able to work together to talk about any issues that your child has been having and raising your grandchildren. Any parent reading this blog post can tell you that it is normal to have some issues when it comes to raising children. However, if you get to a point where you are coming to understand that your grandchild is being put in harm's way because of your child's parenting then you may think that it's time for you to act rather than sit on the sidelines and do nothing.
It would be best for you to be able to address this issue with your child directly and to see what can be done to improve the lives of your grandchildren. Sometimes merely offering a listening ear to the problems of your child and grandchild can be enough to help in a situation like this considerably. Even volunteering to take your grandchild for a weekend to allow their parents to reconnect or run errands can be a great advantage for a family. Unfortunately, you may find yourself in a position where circumstances have gone beyond the point where you can sort problems out directly with your child.
When it is clear that your child is acting in ways that are detrimental to the health and well-being of your grandchild and you are no longer offered time with them then you may need to act quickly and decisively to ensure the well-being of your grandchild. This can especially occur in circumstances where your child and their spouse divorce and your child loses primary custody of the grandchild. In that case, your contact with your grandchildren may become sporadic at best and your ability to speak into the lives of your grandchild and child become stretched to its breaking point.
While grandparents can provide supplemental care for grandchildren in certain instances, it is not the norm for grandparents in your position to become primary caretakers who have a grandchild. I know we hear about stories where grandparents heroically put themselves in that position to benefit their grandchildren but from my experience in the world of family law grandparents who act as primary caretakers are not the norm but rather the exception. However, this does not mean that you should not consider petitioning a court to allow you to have those sorts of rights and responsibilities. You can and should consider your conscience and your own heart when making these decisions, but it is also important to think about What the law states regarding your ability to proceed with the legal case about your grandchildren.
For the past generation, Texas grandparents have been somewhat hindered by a Texas Supreme Court decision that determined that parents have a much more superior right to contact in visitation with their children than do grandparents. The bottom line is that this case set into motion a legal presumption that parents act with their children’s best interests in mind when making decisions for them. This would include decisions regarding withholding visitation from a grandparent such as yourself. It is possible to rebut this presumption, but it is difficult. The deck is somewhat stacked against you when it comes to this subject given that it is assumed that you are being denied possession, and access for visitation with your grandchildren is in their best interest if mom and dad make that decision.
Visitation with your grandchildren
Let's walk through what you would need to show a Texas family court to request visitation with your grandchildren if you are being denied contact. First, the parental rights of at least one parent of your grandchildren must not have been terminated. This means that either your child or their Co-parent must still have parental rights to your grandchildren. An example would be if your child had their parental rights terminated as well as their Co-parent due to your grandchild being adopted by another couple then you would not be able to when visitation rights.
Next, visitation with your grandchild would need to be in their best interests. This can be a difficult concept to understand in some cases. Namely, what is in your best interests may not necessarily be in your grandchild's best interests. The best interest standard is one that is applied to Texas child custody cases across the spectrum whether it be a child custody or divorce case. The best interest standard causes a family court judge to consider your grandchild's current situation, there are future growth as well as mental, physical, and emotional factors. The judge would need to determine that it is in your grandchild's best interest to have continued contact with you if you intend to file a petition for visitation rights.
Finally, your child would need to be the biological apparent to your grandchild. You could not be a step-grandparent and ask for the presentation rights of a step-grandchild. Additionally, your child would have needed to have been in jail or prison for at least six months before you file the visitation lawsuit, been found to be mentally incompetent by a court, has died or does not have court-ordered possession or access to your grandchild. These are circumstances that can become somewhat murky in terms of determining which circumstances apply to you and which ones do not. For that reason, I recommend that you work with an experienced attorney with the Law Office of Bryan Fagan to help you sort through these details before you attempt to file a visitation petition with a family court.
Overcoming the best interests presumption in favor of parents
Let's say that you as a grandparent can prove the above factors are in place and are given the ability to proceed with a visitation petition regarding your grandchildren. This means that your petition will be allowed to proceed in the family court and that you would be able to present a case to a judge that you should be given formal visitation rights through the court about your grandchildren. However, the major hill that you would still need to climb is showing the family court that within your grandchild's best interest that you'd be given visitation rights.
This is done initially by filing an affidavit with your petition for the visitation period the affidavit would need to be very specific in asserting the reasons why your grandchild's best interests are served by having visitation with you. It is helpful to give examples of your continued contact with your grandchild and how taking visitation opportunities away from you has harmed your grandchild. It is a high burden to meet when it comes to overcoming this presumption in favor of parents making decisions in the best interests of their children. Even if a family court judge determines that the facts stated in your affidavit have merit if they do not meet this high burden then the court would likely dismiss your lawsuit and not allow you to appear for a hearing.
However, if the judge believes that the facts stated in your affidavit are sufficient to meet this burden potentially you would be allowed to attend a hearing in front of the judge where you could put forward evidence to prove the facts that you allege in your affidavit. This means documentary evidence, physical evidence, testimony, and any other material that you have to prove the allegations you made in the affidavit to be true would need to be presented to the family court judge.
This is a tricky situation for you as a grandparent to find yourself in. Much of the time a good-natured and well-intentioned grandparent like yourself will follow their heart and attempt to win visitation rights of their grandchildren if they believe that is in the child's best interests. However, oftentimes grandparents will conflate their own best interests versus that of their grandchild. Much of the time we see that grandparents intend to submit evidence to a court that their grandchild will be sad if they were not able to spend time together. While this may be true that does not necessarily successfully rebut the presumption in favor of parents making decisions that are in the best interests of their grandchildren when it comes to denying visitation with a grandparent.
If you are a grandparent who is serious about attempting to file a lawsuit where you attempt to win visitation rights to your grandchildren, then you should be prepared to meet this high burden that is placed on grandparents. Showing that your grandchildren have been harmed in some way by having visitation denied with you is a good place to start. Having evidence showing the extent to your relationship with your grandchildren and the degree to which they have been harmed because of having visitation denied with you would be a good game plan for you to develop with an experienced family law attorney.
Sometimes meeting with an experienced family law attorney can be enough to show you that you have a strong case and that you will be well suited to have visitation rights with your grandchildren based on your circumstances. However, the only way for you to determine whether this is the position you find yourself in is to take the first step and reach out to an experienced family law attorney with the Law Office of Bryan Fagan. We can meet with you to answer your questions and have a free-of-charge consultation with one of our experienced family law attorneys. Each of our attorneys has experience working with grandparents just like you who have the best interests of their grandchild at heart.
Drug addiction and grandparent custody rights
If your child or their Co-parent is struggling with an addiction to drugs or alcohol, then you may feel like you need to move forward to when custody of your grandchild. Having custody of it goes well done patient rights. Vision rights allow you benefited time with your grandchild in a controlled setting. However, conservatorship rights mean that you will have legal duties about caring for your grandchild in addition to the right to make decisions on their behalf in certain circumstances.
You would need to first determine whether you have the standing in a legal sense to be able to set forth and file a lawsuit to establish custody rights as a grandparent. There are several situations in which you as a grandparent would have the standing to file an original suit affecting the parent-child relationship regarding custody of your grandchild. The most frequently running two situations that I have experienced is when you file an original suit for custody after having had actual care, control, and possession of your grandchild for at least six months which ended not more than 90 days before the date your custody suit was filed. In other words, you have been the long-term caretaker for your grandchild for a long period before the filing of this lawsuit.
Another circumstance that could lead you to be able to win custody rights to your grandchildren is regarding being able to show a court that your grandchild's present circumstances would significantly impair your grandchild's physical health or emotional development. This means that there are fairly pressing and emergency-type situations going on with your child where leaving your grandchild in a certain situation would greatly harm him or her likely. It is not hard to foresee a situation where your child is a drug addict and your grandchild needing to stay in a home with a drug addict could directly lead to a great deal of harm physically or mentally. You would need to be able to show a court that this problem is an ongoing and immediate danger to your grandchild.
Finally, in a situation where both of your grandchild's parents, their surviving parent, or the managing conservator of your grandchild consents to you filing a petition for custody then the lawsuit would be able to proceed. This is a situation where your child may be the only conservator of your grandchild and he or she consents to your filing a petition for custody or even files a petition requesting the court place custody rights in your name. When there is no party to contest the filing of your petition the whole process goes a lot smoother. For that reason, you should speak with your child and their Co-parent about the situation involving your grandchild and how you may be able to help by providing guidance and stability for your grandchild now and in the future.
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 at our three Houston area locations, over the phone, and via video.