Do Grandparents Have Legal Rights to Visitation in Texas?

According to a 2022 study, approximately 2.55 million U.S. children live in a household with their grandparents. The relationship between a grandparent and grandchild can have a significant positive impact and influence on a child’s emotional development and is one of the closest relationships there is, second to the parent-child relationship.

What happens when the child’s parent denies them that relationship? Learn about the history of grandparent rights cases in the United States, the rights of grandparents, and how a Texas family law lawyer can help Texas grandparents with the legal advice and support they need to assert their legal rights to be in their beloved grandkids’ lives.

Can a Parent Deny a Grandparent Visitation in Texas?

Yes, parents can deny grandparent visitation in Texas. Grandparents do not have an absolute right to visitation. However, Texas courts can grant visitation rights to grandparents, even over parental objections in some situations. These include the following:

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

It’s important to remember, however, that a grandparent 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 them, the adoptive parent can deny the biological grandparent visitation rights as the child’s conservator. In such a case, the best bet to find out what rights you may have is to contact a qualified Texas family law attorney to discuss your options.

What are Grandparent Rights?

• The issue of visitation with a grandchild typically does not arise in a healthy family relationship. However, when divorce, separation, or death disrupts the family unit, you may run into a situation where a grandparent is alienated from their grandchild by the surviving parent or custodial parent.What if your grandchild is in such a horrific situation that you worry something terrible will happen if you do not step in? This is where grandparent rights come in, or in simpler terms, the right for court-ordered visitation to a grandchild.Grandparent visitation rights can be broken down into several categories or factual scenarios:
• Your grandchild is in a dangerous situation, and the parents are either placing your grandchild in harm’s way or cannot remove the child from a dangerous situation. In a situation like this, you may consider seeking custody of the child to protect them, also known as conservatorship.
• Your grandchild is placed in a dangerous situation, but the grandchild’s parents are not fit to make decisions for the child due to their actions or inactions. This may result in a termination/adoption lawsuit instead of a child custody situation. In this scenario, you ask that the courts terminate the parents’ rights and instate you as the child’s guardian. If you do not, the child risks serious emotional or physical injury.
• The parents are not placing the child in a dangerous situation, but they will not allow you to see or talk to your grandchild because of a conflict you are having with the mother or father. While this might not amount to a dangerous situation, it can be extremely harmful to the child after the relationship you have built. Here we would seek possession of or access to the child to continue that wonderful relationship you have built.

A Brief History of Grandparent Visitation Rights

The issue of grandparent rights seemed to have sparked when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The Troxels were the paternal grandparents, and their son had died. The surviving parent (Granville) allowed visitation with the Troxels, but the visitation was limited. The Troxels wanted more visitation and sued the mother. The statute in Washington that allowed them to sue provided that any person could file a suit seeking visitation of a child, and the trial court would grant it if it found it was in the best interest of the child.

You can see how broad this statute was. This statute was bound to take a fall, which it did.

The grandparents got less visitation than they wanted but more than the mother wanted to give. The child’s mother appealed it all the way to the Supreme Court of the United States.

The Supreme Court found two problems with the statute as written. First, it did not consider the parent’s decisions or wishes regarding what was best for the child. The only people involved were the person who filed the lawsuit and the judge who imposed what they thought was best. The second problem was that the grandparent had not proven that the mother was unfit and unable to make those decisions. Ultimately, the Supreme Court found the Washington statute unconstitutional. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. This presumption ultimately got the ball rolling on limiting a grandparent’s right to sue for visitation. It has been used throughout the states and in Texas law in crafting our grandparent rights statute.

When Can a Grandparent Get Visitation Rights in Texas?

So, what is the law concerning grandparent rights in Texas? This is a very technical subject that you should discuss with an attorney. I will simplify the legal jargon as much as possible in this article but understand that talking with a knowledgeable Texas family law attorney can give you a more accurate idea of your rights and options in your circumstances.

Texas family code states that a grandparent may seek visitation of a grandchild by filing a lawsuit only if the parent of the child meets one of the following criteria labeled a. through d.

A. The parent has been incarcerated.
B. The parent is dead.
C. The parent is ruled to be incompetent.
D. The parent does not have legal possession of or access to the child.

If the parent of the child meets one of the aforementioned criteria, the grandparent will have to meet all three of the numbered circumstances below to file for visitation.

1. When the lawsuit is filed, at least one biological or adoptive parent of the child has not had their parental rights terminated.
2. The grandparent requesting possession of the grandchild overcomes the presumption that a parent acts in the best interest of the child by proving that the denial of visitation to the grandchild would significantly impair the grandchild’s physical health or emotional well-being.
3. The grandparent requesting visitation is the parent of one of the child’s parents.

You can see that this statute is very limited. Criteria a. through d. severely limit who can file suit. This statute used to include a lettered provision for divorced or separated parents as well as the four you see, but that provision was removed as a result of the Troxel v. Granville ruling. You can see what the removal of this provision did to the ability of a grandparent to seek visitation with their grandchild.

If your child (the grandchild’s parent) does not meet one of the four criteria lettered criteria above, then you cannot file a suit.

But that is not the end of it. In addition to meeting the specific criteria set out in a. through d., the grandparent must attach an affidavit to their lawsuit that lists specific facts supporting the allegation that denial of possession would significantly impair the child’s physical health or emotional well-being.

If the Texas court feels that the facts in the affidavit are insufficient to support the claim that lack of visitation would impair the child’s well-being, the court will dismiss the suit.

What does this all mean? Even if you meet one of the criteria in a. through d. above, your affidavit must prove that the child’s well-being would be significantly impaired without grandparent visitation. If you cannot, the case is dismissed.

When Can a Grandparent File Suit for Custody of Their Grandchildren in Texas?

The most common misconception is that any grandparent can sue a parent for visitation. In Texas, the ability to file a lawsuit for just visitation is severely limited. The courts will almost always allow a fit parent to decide on whom the child does and does not visit. However, if the child is in a dangerous situation, the grandparent may be able to sue for custody.

We have gotten visitation rights for a grandparent in several cases. They met the strict requirement for filing a visitation lawsuit for a grandchild, and we proved that denial of visitation to the grandchild was harmful to the child and not in their best interest.

In each of these cases, the child’s parent was deceased (which is one of the requirements). We were able to show the court that the surviving parent had previously allowed significant access to the child but then began to take visits away slowly until there was nothing left, which was detrimental to the child.

What Reasons Can Grandparents File for Custody of a Grandchild in Texas?

Specific circumstances that might allow a grandparent to seek conservatorship or custody of a grandchild in Texas include the following.

• Both parents are dead.
• The child’s current living situation is harmful to their mental, physical, or emotional well-being and development, such as in cases of neglect or abuse.
• The surviving parents agree to allow the grandparent to file for custody.
• The grandparent had care and custody of the child for at least six months, even if unofficially.
• The grandparent lived with the child and one of the parents for at least six months, and that parent has died.

How Hard Is It for Grandparents to Get Custody in Texas?

There are very few circumstances where grandparents can obtain custody in Texas. It is challenging to become a managing conservator of a grandchild, and even harder if you are trying to become the only managing conservator. It is easier if both parents are dead or they both voluntarily relinquish the parental rights of the child to you or someone else. In either case, it is a good idea to seek advice and legal representation from a Texas family lawyer before moving forward.

How Can a Dallas, Texas Grandparents’ Rights Attorney Help Me?

If you do not meet the criteria above, there are a few other options and loopholes that may help you gain grandparent rights. If you need help, contact a lawyer with a Texas family law firm to discuss your options. There may still be a chance, and you will only know once you speak to a lawyer.

Fight for the Best for Your Beloved Grandchild

Your grandkids are your world, and you want to protect them, be by their side, and make sure they get the best shot at a good life. When their parents and other family members cut you out of their lives, it’s heart-wrenching. Child visitation and custody cases involving grandparents can be tricky and complex.

At the Law Office of Chris Schmiedeke, we pride ourselves on our compassion and determination and will fight for you every step of the way. We are well-versed in Texas family law and have years of experience helping people like you fight for their rights.

If you live in the Dallas-Fort Worth metro area, we can help.

Dial our phone number at 214-989-7375 or use our online form to schedule a consultation with a member of our team today.