Grandparents’ Rights – The Times They Are a-Changing

Personal InjuryI have written before about a common misconception about grandparents’ rights, specifically related to a grandparent’s “standing” to file suit related to the custody of or visitation with a minor grandchild. A recent decision by the Texas Supreme Court brings new focus to this issue.

About 10 years ago, the United States Supreme Court ruled, in Troxel v. Granville, a case out of the state of Washington, that grandparents had no standing to file suit in a Suit Affecting Parent Child Relationship. Standing, the first hurdle you must clear when filing a lawsuit, essentially requires that you have capacity to file suit. As a general rule, it means that you are a party with an interest in the outcome. After standing is established, the court can move on to the merits of the case, rendering a decision based on the best interests of the child.

Before Troxel, many grandparents intervened in cases involving their grandchildren, often when there were concerns about parental substance abuse or other issues related to the health or safety to the child. Even after Troxel, though, I would get daily calls from grandparents who wanted primary conservatorship of their grandchildren. Because of the ruling in Troxel, I would have to tell them that, unless they had actual physical care, custody, and control of their grandchildren (to the exclusion of their children), they would likely not have standing to bring such a lawsuit.

About a week ago, the Texas Supreme Court ruled, in Strickland, 02-11-00501-CV,that a non-parent having actual care, custody or control (even if it is shared with the parent) of a minor child has standing. It is important to understand this does not mean that grandparents or other non-parent petitioners will obtain primary conservatorship. It only means that a grandparent or non-parent may now have the right to initiate or intervene in such a lawsuit.

I don’t think it is an exaggeration to say that this has literally turned our world upside down. For all of you who are considering living with your parents for a few months to get on your feet, consider your choice carefully. For those of you who want to bring legal action to obtain primary conservatorship of a grandchild, you need to call a qualified family law practitioner.

While the opinion of the Texas Supreme Court opens a door, it’s important to understand that standing is still fact dependent. Additionally, just because you have standing doesn’t mean you’ll get primary conservatorship. It only means you have the right to be a party to the lawsuit. You’ll still need to demonstrate that granting you conservatorship is in the best interests of the child. For now, though, there is a path for those grandparents and other non-parents who have exercised actual care, custody, and control of a child, to protect their grandchildren.


Grandparent access in Texas

Many grandparents wonder what their rights are when visitation with grandchildren is being denied by parents. The leading case on this issue is named Troxel v. Granville (99-138) 530 U.S. 57 (2000).

Under Troxel, the highest court determined that parents have a fundamental right to determine decisions concerning the care, custody, and control of their children but that grandparent access can be awarded if it is in the best interest of the child or children. However, Troxel stated that there are specific requirements that must be met in order to determine grandparent visitation as there is a parental presumption the court assumes which says that parents ultimately have the right to determine what is in the best interest of their children except when certain conditions are met. These conditions are codified in the Texas Family Code in section 153.433 which states that the court shall order possession if:

“(1) at the time the relief is requested at least one biological or adoptive parent has not had that parent’s right terminated;

(2) 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 providing by preponderance of evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being;

(3) 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:
(a) has been incarcerated in jail or in prison during the three-month period preceding 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 the child.”

The Texas Family Code leaves the ultimate decision to overrule the parents’ desires to the court’s discretion based upon the best interest of the child regardless of the desires of the parent. However, this is a very high threshold to meet as it is very difficult to overcome all of the elements listed in subsections 2 and 3(b). The parental presumption can be overcome in specific instances and as such anyone seeking information should contact an attorney to review the facts of the case.

There are some instances where a parent is deceased and a grandparent has been names as a managing conservator of a child when the other parent has not has his or her rights terminated. This presents a very interesting issue to the court as in some instances the parent that has not had his or her rights terminated may have little or no visitation with the child or may be an incompetent parent. In this instance the Court is presented with an interesting question – if a non-parent managing conservator is the primary caretaker of a child or children, are they subject to the high threshold of the parental presumption? Do they have a right to deny another grandparent’s access to a child or children? Even if a grandparent is not a conservator of the child, would any child’s primary conservator be allowed to deny access to a grandparent of a child or children?

In In re Kevin John Smith and Debbie Staley Smith, Realtors, 260 S.W.3d 568 (2008) (“Smith”), the Texas 14th District Court of Appeals specifically addressed this issues and found that paternal grandparents who were serving as joint managing conservators of a child could not claim the parental presumption that they were acting in the best interest of the child. Smith, 260 S.W.3d 568 at 574. In Smith, a trial court judge found that it would not be in the best interest of the child to have the parents appointed as joint managing conservators. Rather, the court determined that the best interest of the child would be to have the paternal grandparents appointed as joint managing conservators and for the parents to be possessory conservators of the child with limited access to the child.

Although in Smith, the maternal grandmother was not a party to the initial action, the managing conservators allowed the maternal grandmother to have limited access to the child. The managing conservators withdrew access to the child, a modification suit was filed, and subsequently the maternal grandmother was granted access to the child after a temporary orders hearing. The managing conservators challenged the maternal grandmother’s legal standing to request access and the Court of Appeals upheld that the maternal grandmother did, indeed, have standing to bring a suit for access to the child. Id. As in the current case, the managing conservators asserted the belief that section 153.433 imposes additional conditions for access to the child after the grandparent has been established as a parent of a parent of the child. The Court found that “the plain statutory language does not support this interpretation.” Smith, 260 S.W.3d 568 at 572.

Additionally, the Court asserted that standing is conferred by Section 153.432 of the Texas Family Code whereby grandparents are given standing to bring a suit for access and that conditions for granted access are outlined in Section 153.433. Id. at 573. With regard to the parental presumption at issue, the Court determined that the managing conservators, as non-parents, “may not claim the parental presumption.” Id. at 574. The Court limited the parental presumption to parents as defined by Section 101.024 of the Texas Family Code. Id. The Court concluded to “decline to extend the parental presumption…to non-parent conservators when such an extension would conflict with the plain statutory language.” Id.

In In the Interest of J.M.T., a Child, 280 S.W.3d 490 (Tex. App-Eastland 2009), the Court of Appeals ruled that paternal grandparents opposing requested maternal grandparent visitation attained the same status as parents of the child only after the parental rights of the biological parents had been terminated and the child had been adopted by the paternal grandparents. In the Interest of J.M.T., 280 S.W.3d 490 at 490. The Court determined that post adoption, the parental presumption and Section 153.433 would apply to the granting of visitation and that it was the maternal grandparents’ burden at that time to overcome the statutory requirements for access. Id.

In In the Interest of N.A.S. and A.D.S., 100 S.W.3d 670 (Tex.App.–Dallas 2003), the Court of Appeals determined in a case where the father was deceased and mother had allowed access to the paternal grandparents prior to the funeral of the father, the trial court did not abuse its discretion in granting grandparent access to the children, even over mother’s objection to any access to the children being court ordered. In the Interest of N.A.S. and A.D.S., 100 S.W.3d 670 at 673. The mother testified in this instance that the grandparents had a relationship with the children, that she had not objected to visitation before, and that she was denying access by the grandparents to the children at the time the grandparent’s petition was brought to court but that she did not want to totally deny visitation. Id. Although the mother did not want to have a court order specifying visitation the Court affirmed the order granting grandparent visitation. Id.

Grandparents have the right to seek access to a child when facing a non-parent managing conservator. Clearly, in the Smith case, the Court has asserted the parental presumption does not extend to a non-parent managing conservator by strictly interpreting and adhering to the plain meaning of Section 153.433 of the Texas Family Code governing grandparent access. Adopting the plain meaning interpretation of the statute, it is clear that the parental presumption does not extend to non-parent managing conservators but, rather, parents as defined by Section 101.024 of the Texas Family Code which states that:

(a) “Parent” means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. Except as provided by Subsection (b), the term does not include a parent as to whom the parent-child relationship has been terminated.

Interpretation of court orders and court-granted visitation can be a confusing and complicated process. For anyone questioning their individual legal rights in relation to access to a child should consult with an attorney. In many instances where visitation and access are in question, there is a short time period when parties have the legal standing or right to bring a request for access to a child. It is important to bring cases within this specific time frame so that the right to access and visitation with a child is not forfeited.

What About Grandma and Grandpa?

By Dana Floyd

No one can dispute the important role grandparents play in a child’s life. However, with today’s changing family structures, grandparents can often be shut out of participating in a child’s life. To address such concerns, all states have enacted some type of grandparent visitation laws with varying degrees of requirements.

Overall, Texas law presumes that a parent acts in a child’s best interest. In other words, the law presumes that if a parent does not want a child to have time with a grandparent, then that parent is acting in the child’s best interest. As a result, the court will only counteract such parental choices in certain situations. However, if specific requirements are met, a court can authorize grandparent visitation.

First and foremost, any grandparent visitation must be in the child’s best interests and must overcome the presumption that a parent acts in the best interest of their own child. Specifically, a grandparent must show the court that denial of access to the child would significantly impair the child’s physical health or emotional well-being.

Additionally, a grandparent seeking access to a grandchild must be the parent of a parent who does not have actual possession of or access to the child themselves. In other words, the parent of the child must be deceased, in jail, found incompetent or for some other reason does not have actual or court-ordered access to the child. However, a grandparent may not request access to a child if both parents are deceased or have had their rights terminated by the adoption of the child.

Clearly, the Texas statute is very limited, but all hope is not lost for grandparents trying to maintain a relationship with their grandchildren. As always, it’s important to speak to an attorney about each specific situation to find a legal solution to your particular problem.