What happens when a parent will not allow a grandparent to see their grandchild? Do grandparents have any rights to their grandchildren in Texas?
The United States Constitution and Texas law have long recognized and closely guarded the right of a fit parent to make decision concerning the care, custody and control of their children without interference from others or the government. What this means is that there is a presumption that fit parents know how to raise their children and act in their children’s best interest and that right cannot be disturbed without proving the parent is unable to act in the child’s best interest. This is referred to as the “parental presumption” in custody cases. In order to protect this parental right, the Courts have limited the people who may request access to a child and require that the party requesting access overcome the parental presumption.
Under Texas law, a grandparent may petition the court for visitation under limited circumstances. First, if a parent passes away, is incarcerated for at least three months, has had their rights terminated or that parent does not have any periods of possession and access, that parent’s parent(s) may ask the Court to allow them to have visitation with their grandchildren IF the grandparent can overcome the presumption that the parent is acting in the child’s best interest. In order to show the court that the parent is not acting in the child’s best interest, the grandparent must prove to the Court that the children’s physical and/or emotional well-being would be significantly impaired by denying that grandparent the right to visit with the child.
Second, a grandparent may also ask the Court to name them a conservator and order periods of visitation for that grandparent if the grandparent has had actual care, custody and control of the child for at least six months. This means that the grandparent was making decisions for the child regarding education, medical care, and provided the day to day care for the child and the child’s parent or parents allowed them to make these decisions on their behalf. Once the grandparent shows the Court that they have had care, custody and control for the child, the grandparent must then show that not allowing the grandparent to visit with the child would significantly impair the child physical and/or emotional well-being.
Typically, the parental presumption is not applied in modification cases, only in the original divorce or custody case, which sometimes made it easier for grandparents, and other nonparents, to seek rights to the child in a suit to modify either child support or possession and access. However, in a recent decision by the Texas Supreme Court in In re C.J.C., the court held the courts must apply the presumption that a fit parent, NOT the court, determines the best interest of the child in any proceeding in which a nonparent is asking the court to name them a conservator of the child or grant them visitation over the objections of that parent.
So grandparents must fall within one of the limited circumstances AND prove the fit parent isn’t acting in the child’s best interest when denying the grandparent visitation.