Texas’ legal landscape is a little different from the rest of the states. That is why navigating grandparents’ rights and visitation in the case of conservatorship is a bit confusing for many. While grandparents can seek visitation with their grandchildren, the circumstances under which the court will grant such a request are specific and stringent. Attorney John Hicks gives an overview of what one needs to know about the rights to visitation in Texas for grandparents.
In Texas, grandparents do not inherently have the right to visitation with their grandchildren. The state prioritizes the decisions of biological parents regarding their children, operating under the presumption that parents act in the best interest of their children. However, grandparents can file a lawsuit to request visitation or conservatorship under certain conditions.
“To seek visitation rights, grandparents must satisfy several criteria,” states John. According to Texas Family Code Sections 153.432 and 153.433, the grandparent must be a biological or adopted grandparent of the child. At least one of the child’s parents must still have parental rights intact. If both parents have lost their rights, grandparents cannot file for visitation under these provisions. The grandparent must demonstrate that the denial of visitation would significantly impair the child’s physical health or emotional well-being. “Unfortunately, step-grandparents do not qualify under this code,” shares the attorney.
Furthermore, the grandparent must show that the parent of the child (their own child) is either incarcerated for at least three months prior to filing the suit, deemed incompetent by a court, or deceased, or lacking actual or court-ordered possession or access to the child. Attorney John Hicks advises that in many cases, grandparents should consider filing for conservatorship rather than just visitation. Conservatorship, which grants a grandparent significant decision-making authority regarding the child’s upbringing, can provide a stronger legal standing. Filing solely for visitation might not adequately address the gravity of the situation if there are serious concerns about the child’s welfare.
When filing a suit for visitation or conservatorship, grandparents must submit a sworn affidavit to the court. This affidavit must contain factual evidence supporting the claim that denying access to the grandchild would significantly impair the child’s physical and emotional well-being. Additionally, it should be argued that the parents are unable to act in the best interest of the child. The attorney explains, “Texas law presumes that parents act in the best interest of their children. Grandparents must present compelling evidence to overcome this presumption. This can include proof of parental neglect or abuse - situations where the child’s living conditions pose a direct threat to their health or safety.”
Filing for grandparent visitation or conservatorship can be a lengthy and challenging process. Attorney Hicks notes that the timing and nature of the initial filing can significantly impact the outcome. For instance, if the initial suit is not filed correctly or if there is a long delay before the case is heard, it may undermine the grandparents’ case.
Section 102.003 of the Texas Family Code lists general standing requirements for anyone seeking visitation or conservatorship, including having had actual care, control, or possession of the child for at least six months. In addition, Section 102.004 provides specific standing for grandparents to request managing conservatorship if it can be proven that the child’s current circumstances would significantly impair their physical health or emotional development.
The attorney recalls a case where grandparents were concerned about their grandchild’s exposure to inappropriate material. Initially, their attorney did not file for conservatorship, weakening their case. The subsequent amendment to request visitation only further undermined their standing. Ultimately, the court did not grant visitation, emphasizing the importance of filing correctly from the outset.
While Texas laws provide avenues for grandparents to seek visitation or conservatorship, the process requires substantial evidence. Grandparents considering such legal action should consult with an experienced attorney to navigate the complexities of family law and to ensure their filings are strategic and robust. Understanding the nuances of the law and the importance of proper legal standing is crucial to achieving a favorable outcome.
