Do Grandparents Have Visitation Rights in Texas?

An overview of grandparent visitation in Texas.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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Parents and grandparents aren't equals under the law. A grandparent who has a strong bond with a grandchild may petition for visitation with a grandchild, but that doesn't mean that the court will automatically grant the request. A judge will assess a child's best interests in every custody or visitation case. Grandparent visitation won't be awarded if it negatively impacts the grandchild or the parent-child relationship.

A judge will weigh several factors to determine if grandparent visitation is appropriate, and if so, how much. The laws governing grandparent visitation privileges vary from state to state. It's important to understand the laws where you live before petitioning for visitation. This article provides an overview of grandparent visitation rights in Texas. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

There's not a federal grandparent visitation law. The Troxel v. Granville decision is the closest thing our country has to a federal recognition of grandparent rights. The Troxel case explained that while grandparent visitation rights are important, a parent's rights are even more important. Grandparent visitation is appropriate, but only when it serves a child's best interests and doesn't interfere with the parent-child relationship.

The trial court in Troxel wrongly ignored the parents' objections to visitation. The Supreme Court explained that a judge must consider a parent's reasons for preventing grandparent visitation. In other words, the Troxel case requires judges to presume that the parent has a good reason for preventing grandparent visitation, rather than presuming that grandparent visitation is in the child's best interests. Each state has crafted its own grandparent visitation laws. However, to survive a constitutional challenge, the state law must follow the guidelines set forth inTroxel.

Grandparent Visitation in Texas

Under Texas law, grandparent visitation rights are well established. A grandparent can petition the court to establish visitation rights with a grandchild or to modify an existing visitation order. Before a judge will award visitation privileges, the grandparent must prove that visitation is in the child's best interests. Specifically, Texas' grandparent statute allows visitation (also called access) when:

  • at least one biological or adoptive parent still has parental rights over the child
  • the grandparent seeking visitation shows that a denial of grandparent visitation would harm the child's physical health or emotional well- being, and
  • the grandparent seeking visitation is the parent of the child's parent, and the child's parent:
    • has been incarcerated in jail for at least three (3) months
    • has been declared mentally incompetent by a court
    • has died, or
    • does not have actual or court-ordered visitation with the child.

For example, in one Texas case, a judge denied a maternal grandparent's request for visitation. The child's grandmother cared for the grandchild during the mother's (the grandmother's daughter) illness. Following the mother's death, the grandchild's father cut off visitation completely. Although the court expressed regret that the grandchild's father prevented visitation, the court still gave significant weight to the father's decision. The court refused to grant visitation because the grandmother was unable to prove that the father was unfit or that without grandparent visitation, the grandchild's emotional or physical health would be harmed.

In another Texas case, a paternal grandmother was denied visitation because she couldn't prove that the grandchild's mother was unfit. Following the death of the grandchild's father, the grandmother immediately sought additional visitation with the grandchild. The court found that the grandmother's visitation hadn't been cutoff, she just wanted more visitation than she was getting. The grandmother's request was denied because she hadn't proved that the grandchild would be harmed without visitation, and there was no evidence that the mother wasn't tending to her child's needs.

When can a grandparent obtain custody of a grandchild?

Parents' rights to rear and raise their own children are one of the oldest and most fundamental rights. A court can't interfere with the parent-child relationship unless a parent is unable to meet the child's basic physical and emotional needs. Thus, a grandparent can only obtain custody of a grandchild when:

  • the grandchild's current home environment presents a serious concerns regarding the grandchild's physical and emotional welfare, or
  • one or both parents has consented to a change in custody.

A grandparent may seek custody by intervening in a custody action filed by the state or by the parents. Grandparents don't have standing to bring original custody suits against a grandchild's parents. Instead, a grandparent's request for custody must be filed as part of an existing custody case.

A grandparent's rights over a grandchild are always secondary to a parent's rights. However, a child's best interests will determine if an award of custody to a grandparent is appropriate. Although a parent's rights to a child are significant, a parent's own actions can result in a termination of those rights.

Can a biological grandparent obtain visitation with an adopted child?

Adoption is a permanent termination of a parent's rights to a child. Grandparent rights come through a parent's rights. Thus, adoption severs a grandparent's ability to seek visitation with a grandchild. One exception is in the case of stepparent adoption. However, even then, a grandparent must still prove that visitation serves the grandchild's best interests and doesn't substantially interfere with the stepparent-child relationship.

A grandparent plays a special role in a grandchild's life. Both children and their parents benefit from involved grandparents. However, in cases where parents divorce or separate, a grandparent's contact with a grandchild may be quickly cut off. Yet, there is legal recourse for grandparents who want to maintain contact with a grandchild. If you have additional questions about grandparent visitation rights in Texas, contact a local family law attorney for advice.

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