Does Grandma Really Have The Right To Visit With Your Child?

It's a scenario as a family law attorney that we are seeing more and more of: for whatever reason, mom/dad decide that they do not want the grandparents visiting with their child. And then the grandparents feel as though they have no other option but to go to the courts for help. The United States Supreme Court case of Troxel v. Granville severely limited the ability for grandparents to obtain visitation against the parents' wishes  http://www.law.cornell.edu/supct/html/99-138.ZS.html. The decision also heightened the burden that the grandparents must overcome in order to be successful in their visitation suits. Texas courts have adopted the Troxel doctrine and routinely apply it in these types of cases. Of course, depending on the facts and circumstances, sometimes having grandparents in a child's life is in the child's best interest, but sometimes the grandparents have no choice but to respect the parent's decision.

First off, know that grandparents do not have to jointly file in order to try to obtain visitation. Either the grandmother or the grandfather can file the Petition. There's no rule that states both grandparents must file together, but more often than not usually both grandparents do. Regardless, in order to be qualified to file suit, also known as "Standing", the grandparent must satisfy these 3 requirements:

1. at the time the relief is requested, at least one  biological or adoptive parent of the child has not had that parent's  parental rights terminated;
2. the grandparent requesting possession of or access  to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child  would significantly impair the child's physical health or emotional  well-being;  and
3. the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of  the child:  

          A). has been incarcerated in jail/prison during the 3 mo. time preceding the filing of the Petition;          
          B). has been found by a court to be incompetent;
          C). is dead, or
          D). does not have actual or court-ordered possession of or access to the child.


These requirements are from the Texas Family Code §153.433.http://law.onecle.com/texas/family/153.433.00.html

Normally, the first requirement is easily satisfied. Its the 2nd and 3rd ones that hold grandparents behind from obtaining a court-ordered possession and access schedule. Remember, access and possession are 2 different things; access means that you have the ability to visit with the child for a set time, while possession indicates that you have the right to take the child for a set time and the child is in your possession.

So what can a parent do if they find themselves in Family Court because of the grandparents? Texas Courts also take into account the “fit parent” presumption: a parent who is “fit” is presumed to make decisions—including the decision to prevent a grandparent from contacting a child—in a way that serves the child’s best interest.   In 2004, the Texas Attorney General issued an opinion that suggested courts apply the “fit parent” presumption, which could be rebutted if the grandparent showed, by a preponderance of the evidence, that the parent was not fit or that denial of access by a grandparent would impair the child’s well-being.

So what does it mean that denial of possession with significantly impair the child's emotional or physical well-being? Instances of such impairment are when grandchild had lived with grandparents for extended period of time, referred to grandparents as “mom” and “dad”, and had close ties with extended family. This was enough for numerous Texas courts to show that break in relationship might significantly impair child. On the other hand, Texas courts have also held that evidence of grandchildren being  accustomed to spending time with grandparents and wanted to see them more often was insufficient, i.e. not enough,  to show that break in relationship might significantly impair the children.


Texas courts have routinely held that the grandparent must offer evidence of specific acts or omissions by the parent supporting the idea that significant impairment will occur. Simply put, courts want to know what specific, identifiable behavior or conduct of the parent or parents will probably result in harm to the child and why you as the grandparent should get visitation.   There must be either direct evidence that placement of the child with the parent would significantly impair the child’s physical health or emotional development. Just telling the court that there might be a possibility of harm is not enough. Specific instances of significant impairment held by a Texas court was when the parent was incarcerated for much of the child’s early life, was later absent from the child’s life for more than 2 years, and then repeatedly failed to exercise her rights to visit her child - a scenario like that equaled that significant impairment would have happened. Texas courts have even held that significant impairment could be found when the parent had a drug problem, failed to support his/her children, and was irresponsible. 

Nevertheless, Texas courts have also vehemently held  that parents are not imposing a significant impairment when they move away to Australia, even though grandparents resided in the United States.   Even a parent who had a history of drug abuse, did not own a vehicle, lived with boyfriend’s parents, and did not have paid employment was ruled not be causing significant impairment to the child.

A second burden of proof that the grandparents must overcome within the second prong of Texas Family Code §153.433(a)(1) is to demonstrate by a preponderance of the evidence that the parents’ appointment would significantly impair the child’s physical health or emotional development due to the grandparents’ substantial past contact. Courts however disagree if substantial past conduct applies to grandparents or other people as well. Generally, it is determined on a case by case basis. However, the factors the court shall use when seeing if substantial past conduct has existed are the amount of actual contact with child. Texas courts held that a grandmother met this requirement when she was frequently caring for the children, living nearby, and spending time with them. However, keep in mind that substantial past contact does not mean seeing the children regularly.

Lastly, many times the grandparents fail in obtaining a court order because the parent has an order entered that gives him/her visitation with the child. If the parent has a possession order in place and just doesn't care to exercise his/her visits with the child, the grandparents will have a harder time convincing the courts that they should be granted visitation

If you feel like perhaps grandparental visitation is an option you would like to explore, please feel free to contact our office and schedule an appointment with Sarah Balaparya today.
Direct Line: 512.522.1749
Email: sarah@rb-lawgroup.com
www.rb-lawgroup.com