Current Limitations
In 2000, the U.S. Supreme Court issued an opinion in Troxel v. Granville, 530 U.S. 57 (2000) that has had some negative impact on the visitations rights of grandparents. In Troxel, the court held that a parent has a fundamental right to decide access to a child which has been deemed as the “fit parent” presumption. The Texas Family Code has provisions that state a grandparent can have possession and access to their grandchildren in certain circumstances.
Since Troxel, the Texas Attorney General has issued an opinion (See Tex. Atty. Gen. Op. No. GA-0260 (2004)) that Texas Family Code Statute pertaining to grandparent access could be unconstitutional because it fails to incorporate this “fit parent” presumption. In 2005, the grandparent access statutes were amended to better conform with Troxel and the Attorney General opinion in 2004. In any case, to avoid constitutional issues, the grandparent should demonstrate to the court that the parent is not fit or a denial of access by a grandparent would impair the child’s well-being.
Access vs Possession
A person who has the right to access the child can approach, communicate with and visit with the child but cannot take possession or control of the child away from the parent or managing conservator. Whereas a person with possession can have the right to possession of the child for limited periods of time, presumably outside the presence of the parent or conservator. Generally, this is a right greater than supervised access but less than possessory conservatorship.
For a grandparent to obtain access and possession of their grandchild, they generally must show the following: (1) that the parental rights of both parents have not terminated; (2) that the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s access or possession were denied; (3) that the parent intends to completely deny the grandparent from having possession of or access to the child; (4) that the grandparent is the parent to a parent of the child; (5) the grandparent’s son or daughter who is the parent is either: (a) in jail for at least 3 months; (b) declared incompetent by a judge; (c) is dead; (d) does not have actual or court-ordered possession of or access to the child.
Grandparent Advocacy
In other cases, grandparents may be able to intervene in cases involving their grandchildren. Typically, these cases involve circumstances where the child’s present living environment presents a serious question concerning the child’s physical health or welfare.
If you are a grandparent and have questions about how you may be able to get possession and/or access to your grandchildren, put the experience of Gillen & Associates behind you. Our firm offers professional consultations so we can understand your case and present options to you.
