Grandparent Visitation and Custody Rights

According to the Pew Research Center, 7.7 million children in the United States, or 10 percent of all children under the age of 18, lived in the same household as at least one grandparent in 2011. Of these children, 4 percent (more than 3 million) were being cared for primarily by their grandparents.

The number of children living with or being cared for primarily by grandparents has been rising steadily since 2000, with a sharp increase following the onset of the recession in 2007. From 2007 to 2008, the number of children with co-resident grandparents rose by 5 percent, and the number of children being cared for primarily by a grandparent rose by almost 6 percent.

The increases have been more modest since 2008, and from 2010 to 2011, both numbers remained virtually unchanged. Children who are living apart from their parents are far more likely to be living with a grandparent than children who are living with one or both parents. 

Nearly half (47 percent) of children living apart from their parents live with a grandparent, compared to only 16 percent of children living with one parent and 5 percent of children living with both parents. Children living apart from their parents are also the most likely to have a grandparent caregiver, with more than one-third (37 percent) doing so. 

Six percent of children living with one parent have a grandparent caregiver, while only 1 percent of children living with two parents do. Black and Asian children are more likely than Hispanic or white children to be living with a grandparent. Some 15 percent of both blacks and Asians are doing so. For Latinos, the share is 13 percent, and just 7 percent of white children are living with a grandparent.

More recent research from Statista indicated that in the United States, 2.55 million children lived in a household with their grandmother and grandfather in 2022. Of those children, 486,000 were under the age of three.

It is not always easy for grandparents to exercise their visitation and custody rights. You will want to speak to The Law Offices of Richard C. McConathy if you are a grandparent who needs help gaining custody or visitation rights for a grandchild.

Texas State Law on Grandparents Rights

Yes, grandparents have rights in Texas. Texas Family Code § 153.432 gives a biological or adoptive grandparent the ability to request possession or access to a grandchild. Texas Family Code § 153.433 goes on to describe the requirements that must be met before a court can consider granting an order.

However, these statutes do not guarantee that a grandparent will receive custody or visitation; they merely give grandparents the right to make the request. Here is a summary of the requirements that a grandparent must meet in order to request possession or access to a grandchild in Texas:

• The grandparent must be a biological or adoptive grandparent of the child.
• The grandparent must file a petition with the court.
• The grandparent must prove that denial of possession or access to the child would significantly impair the child’s physical health or emotional well-being.

If the grandparent meets these requirements, the court will then consider the best interests of the child in determining whether to grant the grandparent’s request.

It is important to note that grandparents’ rights in Texas are not absolute. The court will always consider the best interests of the child when making any decisions about conservatorship or possession and access.

Grandparent’s rights in Texas to visitation, access, or possession of grandchildren

Grandparents in Texas have the right to request visitation or possession (custody) of their grandchildren under certain circumstances. These circumstances include:

• At least one biological or adoptive parent of the child has not had their parental rights terminated.
• The grandparent making the request proves that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.
• 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 during the three-month period preceding the filing of the petition;
• Has been found by a court to be incompetent;
• Has died; or
• Does not have actual or court-ordered possession of or access to the child.

It is important to note that Texas law presumes that parents should have the right to decide who has access to their children in most cases. This means that grandparents will need to meet a high burden of proof in order to be granted visitation or custody of their grandchildren.

If you are a grandparent in Texas and you are interested in requesting visitation or custody of your grandchildren, you should consult with an attorney to discuss your specific situation.

Proving Harm to Obtain Grandparent Visitation Rights

Grandparents in Texas do not automatically have the right to see their grandchildren. The custodial parent has the right to grant or restrict access, and the courts presume that they will act in the best interests of the children.

However, grandparents may petition the court for visitation rights if they meet certain qualifications and can prove that denying them access to the child would be harmful to the child.

To qualify, a grandparent must be the parent of the custodial parent or the parent of a parent who is incarcerated, incompetent, or deceased. They may not request visitation rights if both parents have had their parental rights terminated, are both deceased or if the child is in the custody of child protective services.

Even if a grandparent meets these qualifications, they must still prove that denying them access to the child would be harmful to the child in some emotional or physical way. This can be a difficult burden to meet, and grandparents should consult with an experienced child custody attorney to discuss their case.

When Parents Can Deny Visitation to Grandparents

Grandparents in Texas do not have an absolute right to visitation. However, the court may grant visitation rights to grandparents in certain situations, even if the parents object.

Texas courts may grant visitation rights to grandparents, even over parental objections, in such situations as:

• When a child’s parents are divorced.
• When a child’s parents abuse or neglect the child.
• When a child has lived with the grandparent for at least six months.
• When a child’s parent is incarcerated, incompetent, or dead.
• When a court order terminated parental rights for the parent related to the grandparent.

Grandparents cannot sue for visitation if the following situations lead to someone else adopting the child:

• Both biological parents have died.
• Both biological parents have had their parental rights terminated.
• Both biological parents have relinquished their parental rights to anyone other than the child’s stepparent.

If someone other than the child’s stepparent adopts the child, the adoptive parent has the right to deny visitation rights to the biological grandparents. In this case, the best way to find out what rights you may have is to contact a qualified Texas family law attorney to discuss your options.

The importance of Troxel v. Granville 

Troxel v. Granville, 530 U.S. 57 (2000), was a landmark case in which the Supreme Court of the United States struck down a Washington law that allowed any third party to petition state courts for child visitation rights over parental objections. The Court ruled that this law violated the fundamental right of parents to direct the upbringing of their children.

The case arose from a dispute between Tommie Granville and the parents of her deceased ex-boyfriend, Brad Troxel. After Brad’s death, Tommie limited the grandparents’ visitation with their grandchildren to once a month. 

The grandparents objected and petitioned the Washington Superior Court for visitation rights. The Superior Court granted the grandparents’ petition, but the Court of Appeals reversed, holding that the Washington law was unconstitutional. 

The Washington Supreme Court affirmed, and the U.S. Supreme Court granted certiorari. In a 6-3 decision, the Supreme Court held that the Washington law violated the fundamental right of parents to direct the upbringing of their children. 

The Court reasoned that this right is essential to the family unit and that the state cannot interfere with it unless there is a compelling reason to do so. The Court found that the Washington law did not meet this standard, as it allowed any third party to petition for visitation rights without having to show that the child would be harmed if visitation was denied.

The Troxel decision has had a significant impact on grandparent visitation rights across the country. In the wake of the decision, many states have enacted laws that make it more difficult for grandparents to obtain visitation rights over parental objections. 

The decision has also been cited in cases involving other third-party visitation rights, such as those of aunts, uncles, and stepparents. The Troxel decision is a reminder that the fundamental right of parents to direct the upbringing of their children is a core value of our society. The state cannot interfere with this right unless there is a compelling reason to do so.

Importance of Standing in Grandparents Rights Cases

It is very important to carefully evaluate the issue of grandparent standing with an experienced grandparents’ rights attorney. Just like any party to a civil case, a grandparent must show that they have the “right” to prosecute their case (i.e., seek custody or visitation). This right is known as “standing.” If a grandparent cannot meet both the procedural and substantive requirements of standing, their lawsuit will be dismissed.

In other words, if a grandparent cannot meet the initial standing requirement, their case will be thrown out.

There are three forms of rights that grandparents may seek in relation to their grandchild: (1) managing conservatorship; (2) possessory conservatorship; and (3) possession and access (i.e., “visitation rights”). Each has its own unique requirements, which are discussed below.

Grandparents may seek managing conservatorship, which gives them the same legal rights and duties as a parent. There are two ways for grandparents to obtain standing to seek managing conservatorship:

• Under the general standing statute. This statute allows anyone who has “had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition” or when the child has resided with the grandparent “for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition” to seek managing conservatorship.
• Under the grandparent standing statute. This statute allows grandparents to seek managing conservatorship if (1) both parents, the surviving parent, or the managing conservator filed the petition or gave consent or (2) the grandparent being awarded managing conservatorship is “necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.”

The Texas Supreme Court has ruled that simply presenting evidence that a grandparent would be a “better conservator” of the grandchild is insufficient to support the appointment of a grandparent as a managing conservator of a grandchild in preference to a parent.

Grandparents are required to file an affidavit setting forth the facts they believe meet the standing requirement. If the court finds that the facts asserted in the affidavit do not meet the “significant impairment” standard, the court must dismiss the grandparent’s lawsuit.

Grandparents can also seek possessory conservatorship, which gives them the right to have access to the child and other rights as determined by the court. However, unlike managing conservatorship, grandparents cannot file an original suit seeking possessory conservatorship. They can only intervene in an existing custody suit.

To intervene in a custody suit, grandparents must show that appointing a parent as the sole managing conservator or both parents as joint managing conservators would significantly harm the child’s physical health or emotional development.

Grandparents can also file an original suit or a suit to modify a prior order seeking only visitation rights to a grandchild. The standards by which the court decides whether to grant visitation rights are set forth in Texas Family Code § 153.433, which provides that the court may order reasonable visitation if:

• At least one biological or adoptive parent of the child still has parental rights.
• The grandparent requesting visitation can show that denying visitation would significantly harm the child’s physical health or emotional well-being.
• The grandparent requesting visitation is a parent of a parent of the child and that parent (a) has been incarcerated for at least 3 months before the filing of the petition, (b) has been found by a court to be incompetent, (c) is dead, or (d) does not have actual or court-ordered possession of or access to the child.

There is an exception to the “significant impairment” standard for grandparents under the general standing statute if a grandchild has lived with them for six months or more, ending not more than 90 days before the custody suit is filed. If a grandparent files a custody suit within 90 days of the grandchild having lived with them for six months, the grandparent may not be required to meet the “significant impairment” standard.

Grandparent Visitation and Custody Rights Attorney in Tarrant County, TX

If you are a grandparent who is seeking greater custody or visitation rights relating to your grandchild, you may be facing a very uphill battle. You do not have to deal with everything by yourself when you work with The Law Offices of Richard C. McConathy.

You are going to want to call (817) 422-5350 or contact us online as soon as possible to take advantage of a free consultation so we can sit down with you and go over all of the unique aspects of your case. You should also be aware that our firm understands how domestic violence impacts many of these cases and will be able to work with you to address those issues in Fort Worth, Arlington, Grapevine, Keller, Southlake, or other cities in Tarrant County, TX.