Grandparent rights in Texas Family Law

At the Brandy Austin Law Firm, we have a diverse array of family law clients. Many people do not know that grandparents tend to have child issues as well. Quite often grandparents are overjoyed when their children have children. Grandchildren are an extension of their lineage and an opportunity to welcome the new generation into the fold. Sometimes, disagreements arise and the children refuse to let the grandparents see the grandchildren. Other times, the grandparents become the pseudo-parents and rend up raising their own grandchildren. Grandparents in Texas do not have an automatic claim to their grandchildren. As such an unexperienced family law attorney will unfortunately tell a prospective “grandparent” client that they have no rights and cannot be helped. However, the Texas Family Code permits grandparents to file a petition with the court requesting visitation of a grandchild. It is essential that a grandparent use the services of a family law attorney who is familiar with grandparent issues in Texas.

When it comes to grandparent visitation, the grandparent must overcome the presumption that a parent is not acting in the best interest of the grandchild when the grandparent is refused access. In order to overcome this presumption, the grandparent must prove that the denial of access to the grandchild will “significantly impair the child’s physical health or emotional well-being.”

This standard is known as the “harm standard.” It is a higher standard than some states however it aligns with the requirements spelled out in the Supreme Court case Troxel v. Granville. The Supreme Court essentially stated that “so long as a parent adequately cares for his or her children, there will normally be no reason for the State to inject itself into the private realm of the family.”

Texas law is pretty straightforward with regard to grandparent visitation. A grandparent may not request visitation if:

1. Both parents are dead or have had their parental rights terminated;

2. If the grandchild is adopted by a person other than a stepparent or if such an adoption is in process.

3. If both parents have relinquished their parental rights to child protective services or any other person or entity acting as a managing conservator.

A grandparent may request visitation if the parent of the grandchild is a child of the grandparent who is:

1. Dead;

2. Incarcerated;

3. has been found by a court to be incompetent or;

4. for other reasons does not have actual or court-ordered possession of or access to the child.

If the grandchild has been living with the grandparents for at least six months, the grandparents are entitled to file for possession or what is commonly known as custody. Grandparents may also file for possession if the grandparents believe that the child’s parent is physically or emotionally harming the child.

It should be no surprise that the burden of proof for possession by a grandparent is high as well. Grandparents need to submit evidence showing why possession by the grandparents is in the best interest of the grandchild. Absent any real evidence to show why the grandchild would be in a better situation with the grandparent may cause the grandparent to lose their case.

If you are a grandparent seeking visitation or possession of your grandchild, please contact the Brandy Austin Law Firm for a free 30-minute case consultation.

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