Grandparent Rights and Visitation
Grandparent Rights is a term that brings up heated discussions on multiple levels. The knee jerk reaction of most attorneys in Texas is to simply state there is no such thing as Grand-Parent Rights in Texas. And that statement is absolutely true. However, there is a difference between Grandparent Rights and Grandparent Acceess.
Rights vs. Access.
The United States Supreme Court in the case of Troxel v. Granville held grandparents do not have a Constitutional right to see or visit grandchildren. Note, the term is “right”. The Supreme Court based it’s opinion on the general presumption that since parents have the right to determine the best interests of their children, those parents are entitled to decide who does or does not have contact with their children – including the grandparents. The Troxel case is worthy of a web page of it’s own, but the genesis of the opinion is that the Due Process Clause of the U.S. Constitution “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” while grandparents do not enjoy these same “rights” in regards to grandchildren. Accordingly, grandparents have no rights when it comes to the custody of their grandchildren.
However, while grandparents do not have a constitutional right to see their grandchildren, a grandparent may be able to get a court order granting him/her/them “possession and access”. It is perhaps semantics but in short, grandparents have no rights until a judge gives them rights. This is in stark contract to a mother and a father who both have rights that devolve through the DNA. I often tell parents that a mother and a father are equal under the law until a judge says otherwise. Well, in the terms of grandparents they are not equal to a parent until a judge says otherwise.
Be careful what you ask for.
Remember when you were younger, perhaps raising your own kids or as a teen you had an instance when you asked for something – or your child asked for something – only to be told “no”. Later you realize that if you had asked differently, or had the question posited to you been asked in a different manner – the answer may have been “yes”? That is grandparent access. If you have asked a family law attorney or two about grandparent rights and been told you have no rights, it is likely because you are asking the wrong question. Do you want rights or do you want access? By the way, access can mean custody if the circumstances are correct.
Putting the Troxel case into context helps explain. In Troxel, mom and dad never married but did have two children born during the relationship (both girls). After the couple broke up, the dad lived with his parents (grandparents) and regularly brought his daughters to their home for weekend visitation. Dad committed suicide and the grandparents continued to see the two little girls on a regular basis for several months. When mom informed the grandparents that she wished to limit their visitation to one visit per month the grandparents filed a lawsuit in court basically requesting the Judge order mom to let them have the grandchildren the amount they would have had access if there son were alive and continued to live with them. It is important to note, mom agreed with some visitation just not what the grandparents deemed “enough”.
The exact rulings of the lower courts is unimportant at this point. Suffice it to say the case was appealed all the way to the United States Supreme Court. When the “supremes” make a ruling it is binding on every court in the land. Therefore, Troxel affects every state. While some states have made exceptions, Texas pretty much follows the ruling in Troxel which is grandparents do not have a right to demand visitation or possession because the parent has the right to decide who does or does not have contact with their children.
I am a grandparent, if I don’t have rights, how do I get access and visitation?
This is the correct question to ask and the answer is “simply ask”. Generally unless the child’s parent(s) sign a power of attorney giving you the power to say where the child lives and to make decisions for the child, you must go to court to get custody over a grandchild. This means you have to file a lawsuit in a court asking the court to give you custody of the child but to ask the Judge you have to have “standing” to file a SAPCR. Standing can be attained several ways.
To file an original lawsuit asking for custody:
- The grandchild has to have lived with you for 6 months. If the child lived with you for 6 months but is now living with someone else, the child must have moved out within 90 days of when you file the lawsuit. or
- A court has to have named you as the child’s guardian; or
- You must be able to prove that the child is being hurt because of the child’s living conditions or by the people caring for the child; or
- Both of the child’s parents, a surviving parent, the child’s court appointed managing conservator, or the child’s custodian have to agree that the child should live with you; or
- If a person who does have standing has already filed a SAPCRasking a court to say who the child should live with a grandparent can file a motion to intervene. In order to file a motion to intervene, the grandparent must have had a lot of past contact with the child and be able to prove that the child is being hurt because of the child’s living conditions or by the people caring for the child.
Getting a Court Order: Challenges for Grandparents
Grandparents must overcome many hurdles in order to get access or visitation to grandchildren over parents’ objections. The first of these hurdles is simply getting into court. Typically, courts will only hear grandparent visitation cases if a parent has rights that have not been terminated (grandparents cannot petition for visitation or access of a child that has been placed for adoption) and the parent whose rights have not been terminated is:
- Found mentally incompetent by a court;
- Deceased; or
- Not currently living with the child.
The standard above is just to get into court, once grandparents have gotten into court, the court may order visitation if it would be in the child’s best interests, AND denial of the requested access/visitation would impair the child’s emotional or physical development.
In other words, grandparents have no rights, but grandparents may gain access or visitation under the right circumstances. Of course, that parent who has the fundamental right to make decisions concerning the care, custody and control of their children can always “give” a grandparent those rights.