Grandparents Rights – The Law

| Mar 7, 2019 | Grandparent's rights

On June 5, 2000, the United States Supreme Court handed down a seminal ruling as regards the complex issue of grandparents rights. In the case of Troxel v. Granville, the court struck down a Washington state law that allowed any third party (i.e. grandparents, etc.) to petition state courts for child visitation rights over parental objections. The Court held that “the interest of parents in the care, custody and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.” That fundamental right is implicated in grandparent visitation cases, and as such, it struck down the Washington visitation statute because it unconstitutionally infringed on the right.

However, the Supreme Court clearly held that the states that did have grandparent visitation laws would not be held unconstitutional on their face. They held that in order for state laws to be constitutional, three things need to be in the law: 1) If there is a claim or action filed, it is the grandparent that has the burden of proof; 2) The court should give “deference” to a “fit” parent’s decision; and 3) The grandparent may still proceed with their request for grandparent visitation and overcome being denied contact; and each state should have a set of factors for the court to evaluate when deciding to either grant or deny a grandparent’s request, over a parent’s objections.

In Texas, the custody statute does not provide statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include a determination that one of the child’s parents is deceased, incompetent, incarcerated, or has had his or her parental rights terminated. Visitation may also be awarded if the parents are divorced, the child has been abused or neglected, the child has been adjudicated a delinquent or in need of supervision, or the child has lived with the grandparent for at least six months within 24 months of the filing of the petition for visitation. Adoption cuts off the visitation rights of the grandparent unless the adoption is granted to a stepparent.

Grandparents frustrated with their visitation situation should consult with a Board Certified Family Law attorney to determine their options.

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