Divorce is hard on families, and oftentimes the extended family isn’t really factored into the equation when it comes to the children involved. While a child custody arrangement that is reached between parents will not typically automatically exclude grandparents from visitation, it is a risk in some cases. What’s more, when custody of a child is unclear and one or both parents are unfit to have custody of the child, a grandparent may feel as though it is there duty to seek custody of the child. However, being awarded visitation or custody rights as a grandparent can be an uphill battle.
If you are a grandparent and are being shut out of your grandchildren’s lives, it’s important to learn about the visitation and custody rights you have under grandparent rights in Texas.
What Are Grandparents Rights In Texas?
Most parents want their own parents to be involved in their children’s lives; in the majority of cases, a grandparent-grandchild relationship is a positive development. For whatever reason, though, some parents may wish to revoke the rights of a grandparent either pre- or post-divorce. In some cases, this may be because the parent of the child truly believes that the child’s relationship with the grandparent is negative for the child. In other cases, it may be used as a way to punish the other spouse’s family for wrongs the parent believes they have suffered during the course of the marriage and divorce.
Even if you and your grandchild are related by blood, unfortunately, being a grandparent does not give you the right to see your grandchild. In Troxel vs. Granville, the Supreme Court ruled that just parents have the right to make decisions concerning the care, custody, and control of their children. Basically, this means that if a parent doesn’t want you to have visitation rights, you aren’t allowed to. Of course, there are ways to get around this – consulting with an experienced grandparents’ rights attorney is a critical next step if you have been denied visitation with your grandchild.
Parents’ rights trump grandparents rights in Texas, and courts rule in favor of what is best for the children. As a grandparent, you can seek for visitation privileges, but you must prove that visitation is in the child’s best interest. The court determines what the best interests of a child are based on a number of factors. These factors include, but are not limited to:
- The emotional and physical needs of the child;
- The preferences of the child (when the child is of a mature age to express such preferences);
- The ability of the grandparent (or whoever is seeking custody/visitation) to meet the child’s needs;
- The relationship that the grandparent maintains with the child; and more.
Essentially, the grandparent must prove that being denied visitation with the grandchild would have a negative effect on the child’s wellbeing, and that maintaining the relationship is within the child’s best interests for physical, mental, or psychological and emotional reasons.
In addition to proving that the best interests of the child are satisfied, in Texas, you also must have these factors in line:
- At least one parent (biological or adoptive) must have parental rights of the child
- You can prove that denying grandparent visitation would harm the child’s emotional or physical well-being, or
- You are the parent of the child’s parent and the child’s parent has been incarcerated for at least three months, has been declared mentally incompetent (by a court), has died, or does not have court ordered visitation with the child
In most cases, the court will grant visitation rights for a grandparent if there is no evidence that the child would be harmed by visitation, and there is evidence that the contrary is true. This is especially true when at least one of the parents is in favor of grandparent visitation. (As a note, if the child has been adopted by anyone other than the child’s stepparent, a grandparent does not have the right to seek visitation with the grandchild.)
But Can You Get Legal Custody of Your Grandchildren?
Most grandparents just want visitation with their grandchild, especially when one or both of the child’s parents are able to provide the child with love and care. However, there are some cases where a grandparent may want to seek custody of their grandchild. This may be the case when a parent has died or is incarcerated, a parent is abusive or physically or mentally unable to provide for the child, or the parent has abandoned the child.
If you are seeking custody of your grandchild, it is important to know that a court won’t interfere with the parent/child relationship unless the child’s basic emotional and physical needs are not being met. And you have to clearly prove those needs aren’t being met if you want to gain custody.
You can file a lawsuit in a court to ask for custody of a child, but before you prepare to file a lawsuit, make sure these things are in order first:
- The grandchild must have lived with you for six months, or
- If the child lived with you for six months, but doesn’t now, the move out must have taken place within the last 90 days of when you filed the lawsuit, or
- A court named you as a legal guardian, or
- You can prove the child is being hurt by his/her caretakers or environment, or
- Both of the child’s parents (or a surviving parent, the child’s court-appointed managing conservator or custodian) have agreed the child should live with you
If someone else has already filed a lawsuit (another grandparent, for example), you will need to “intervene.” To do this, you need to:
- Have had a lot of past contact with the child, and
- Prove the child is being hurt because of his/her environment or caretakers
Like the court does when making a visitation about grandparent visitation with a child, a court will consider the best interests of the child if any of the above is true (the child is living with you, the child is being abused, etc.). You will need to prove that you are able to meet the child’s physical and emotional needs, provide a stable home, and that the child’s best interests will be served by remaining in your custody.
What Are the Factors Influencing the Court’s Decision?
In addition to the numerous factors and circumstances listed above, a court will always consider parental presumption, too. Parental presumption means courts usually assume it’s in the best interest of the child to stay with his or her parents. If this is called into question by you, the court will look at several factors:
- What the child needs (physically and emotionally)
- What the child wants
- Who would be good at raising the child
- If the child is in danger
- If the home is safe and stable
- The acts of the parents (like committing crimes or not taking care of the child)
- And anything else the judge thinks is important
It’s a hard road for a grandparent to win custody because parental presumption is a strong factor. You will have to strongly prove specific reasons the child would be hurt with his/her parents. If the parents are reasonably able to take care of the child now (even if they once weren’t), the judge will likely rule in favor of the parents.
Steps to Take if You Want to Seek Visitation with or Custody of Your Grandchild
If you want to seek visitation with or custody of your grandchild, it is important that you understand what the court is looking for and what you will need to do to prove that maintaining a relationship with you is best for the child. Our lawyers recommend beginning the process as early as possible – the more evidence that you have to support your case, the better. Steps to take if you want to seek visitation with or custody of your grandchild include:
- Document everything. You should start writing down, photographing, and otherwise documenting any evidence that you have that illustrates why the court should side in your favor. If you are seeking visitation with your grandchild, this may include pictures or video of you two spending time together, pictures your grandchild has created that highlight their relationship with you, and more. If you are trying to prove abuse of a parent, physical signs of abuse, testimony from neighbors, and more can all help you to win your case.
- Be prepared. The last thing that you want is to go to court unprepared when seeking custody of or visitation with your grandchild. You should have a clear understanding of exactly what it is you’re asking for, and why you believe the court should side in your favor. You should be prepared to give testimony to the court and answer questions asked by the other side’s lawyer.
- Hire an attorney. Trying to win a grandparents’ rights case without the help of a seasoned family law attorney is never a good idea. These cases are complex, and you can be sure of the fact that your grandchild’s parents will be working with a skilled attorney. An attorney helps you every step of the way, from gathering evidence to understanding the law to presenting your case and negotiating with the other side to reach an arrangement everyone can live with. If your case cannot be settled through mediation and negotiation and does go to court, your attorney can litigate on your behalf.
Call Our Skilled Family Law Attorney Today
It is possible to ask the court for the right to visit or have custody of your grandchildren, but it’s very difficult and is best undertaken with the help of a good attorney. Make sure you look for an experienced family law attorney who understands the law and your potential legal grandparents rights in Texas. At the Law Office of Ben Carrasco PLLC, we know how much you love your grandchild and how devastating being denied your rights with your grandchild can be. We are here to advocate for you and provide you with the competent legal support you deserve.