Brenda F. Hasenzahl and Keanan M. Hall
Cotten Schmidt & Abbott, L.L.P.
To quote Judith Levy, “When a Child is Born, so are Grandparents.” With every birth of a child, the family dynamic changes. The 2011 Census information revealed that 14 states had “above average” divorce rates, and nine of those above average states, including Texas, were southern states. More divorces leads to the dissolution of the traditional nuclear family. A nuclear family can dissolve for reasons other than divorce: death of a parent, incarceration of a parent, or substance abuse leading to loss of custody. These changes affect both the parents and grandparents. As a result, the term “Grandparents Rights” is becoming a growing topic and concern for families, and a much more common and litigated area of the law.
Grandparents rights generally means laws, statutes, and case law that relate to the custody and visitation of a grandchild. Today, every state has specific laws on grandparent visitation. However, the law varies from state to state. Some states, such as Utah or Oklahoma, are considered more “friendly” to grandparents rights, and refer to the “rebuttable presumption” that although a parent’s decision about grandparent visitation is deemed to be in the best interest of the child, the grandparents can potentially rebut that presumption if they meet several specific factors. Other states, such as Florida, have struck down various grandparents rights laws as being unconstitutional if the laws attempt to go against the parents wishes (citing that the parents should have the final say in who their child spends time with), unless the grandparents show with ‘clear and convincing evidence’ that the child will suffer irreversible harm without the visits.
In Texas, of course grandparents can see their grandchildren any time, per the parent’s wishes. But if the parents object to the grandparents visiting the grandchildren, or having a relationship with the grandchildren, there are no “automatic” or “inherent” grandparents rights. Put another way, grandparents have no rights of visitation with their grandchildren unless they go to Court and have it established through a Court order.
When grandparents seek possession or access to a grandchild through the Courts in Texas, they must file a petition with the Court and execute and attach an affidavit, with supporting facts, stating that the denial of possession or access to the child would significantly impair the child’s physical health or emotional well-being. TEX. FAM. CODE. § 153.432 (c). If denial of access is the issue, the Courts will presume that the parents are acting in the child’s best interest. The presumption must be overcome by a preponderance of the evidence. TEX. FAM. CODE § 153.433(a)(2).
However, before the grandparents can petition the Courts, Texas law requires they have standing to do so. The Texas Family Code states that the court may order reasonable possession of or access to a grandchild by a grandparent if the following has occurred:
- at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
- the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
- the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
- has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
- has been found by a court to be incompetent;
- is dead; or
- does not have actual or court-ordered possession of or access to the child.
TEX. FAM. CODE. § 153.433.
The U.S. Supreme Court addressed grandparents rights in 2000 in the case of Troxel v. Granville. After their son died, the paternal grandparents brought a petition requesting visitation with their granddaughters. The mother agreed to some visitation, but did not agree to the extended visitation requested. The grandparents filed suit in the Washington State court seeking visitation. The state court granted visitation to the grandparents and the mother appealed the ruling as unconstitutional. The Supreme Court held that the lower court’s presumption that it is normally in the best interest of children to spend time with the grandparent failed to provide any protection for the mother’s fundamental constitutional right to make decisions concerning the rearing of her own daughters.
A reading of the Texas case law after Troxel seems to indicate that grandparent access is an uphill battle. The Courts rely heavily on the “best interest of the child” standard (rather than strictly applying the “significantly impair the child’s physical health or emotional well-being” standard as required by TEX. FAM. CODE § 102.004) and for the most part, defer to the wishes of the parents. Although this is not explicitly stated in most Texas cases, it appears that the Courts are using the “best interest” standard interchangeably with the “significantly impair” standard.
On a national level, despite the somewhat uneven standard and application of the law in this area, the Supreme Court has recently declined to hear a grandparent’s right case from Alabama.
As the family dynamic of America is changing, and grandparents are playing a greater role in their grandchildrens lives, it is important to note how the laws on a national and state level are adapting to recognize this change as this area will continue to be on the forefront of the agendas in both the state and federal legislatures.