You would think that grandparents have an automatic right to see their grandchildren if the parents get divorced even if one or both parents object to that visitation, but that is not the way it is. In 2000, the Supreme Court of the United States (SCOTUS) held that the Due Process Clause of the 14th Amendment “protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
That means grandparents have no constitutional right to visit their grandchildren if the grandchildren’s parents do not want them to. In response to this decision, Texas enacted legislation that allows family law courts to grant grandparent visitation to biological or adoptive grandparents even over the objection of a parent if certain requirements are met.
Texas Requirements for Grandparents to Have “Possession of or Access to” Their Grandchild
Texas law allows grandparents to file an original lawsuit to request “possession of or access to a grandchild.” The person filing the lawsuit must attach an affidavit swearing that, based on their knowledge and belief, “denial of possession or of access to the child by the petitioner would significantly impair the child’s physical health or emotional well-being.”
The affidavit must contain facts to support the allegation. If the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief requested, the court will allow the lawsuit.
The Court May Order Reasonable Access to or Possession of a Grandchild
According to Texas Family Code §153.433, if the following requirements are met, the court may order reasonable possession of or access to a grandchild:
- At the time the petition is filed, at least one of the child’s parents has not had their parental rights terminated.
- The grandparent making the request proves by a preponderance of the evidence that denial of possession or access to the child would “significantly impair the child’s physical health or emotional well-being.”
In addition, the grandparent making the request must also prove that:
- He or she is the parent of one of the parents of the child and that parent has been incarcerated during the three-month period prior to the filing of the petition; or
- The child’s parent has been found by a court to be incompetent; or
- The parent is dead; or
- The parent does not have actual or court-ordered possession or access to the child.
Whittemore Law Firm is dedicated to helping clients navigate difficult family law issues including issues that arise from dealing with grandparent visitation. Whittemore Law Firm serves clients in The Woodlands, Conroe, Montgomery County, Houston, Harris County, and throughout the surrounding area. If you need help, Whittemore Law Firm can help you protect your rights and the rights of your children. For a free 20-minute consultation, contact the Whittemore Law Firm at 832-215-3706
