Increasingly in our society, parents are alienated from their own parents and make the tragic decision to disallow grandparents access to their grandchildren. Such alienation is rarely in the best interest of children, who would generally benefit from a positive relationship with their grandparents. Texas custody proceedings are complicated when it comes to grandparents seeking to get court-ordered access to their grandchildren. Today's blog will provide a general overview of grandparents' rights to seek Court orders for possession of grandchildren. Next week's blog will address a grandparent's right to seek mere access to a grandchild, in cases in which the evidence falls short of sufficient to obtain actual custody.
In 2000, the United States Supreme Court issued a binding decision in a Texas grandparent access case. In that case, the U.S. Supreme Court severly limited a grandparent's access rights by recognizing a parent's constitutional right to raise his/her own children, and the right of a parent to decide, without court intervention, with whom the child would associate. The decision recognizes certain circumstances that would allow a state to grant possession rights to a grandparent. Texas law complies with the U.S. Supreme Court decision by recognizing certain grandparent rights within the legal framework that is allowed. While grandparent rights are certainly limited, grandparents do have some important remedies.
A grandparent who has had actual care, control and possession of a grandchild for at least 6 months, ending within 90 days of when the lawsuit is filed, can seek custody. In such a case, the grandparent can win custody by showing that the parents' having custody would be a significant impairment to the physical health or emotional development of the child. If the grandparent does not meet the standard of actual care for the requisite period of time, the grandparent may still file an original custody case if there is satisfactory proof to the Court that the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development.
A common question about this legal standard involves the sufficiency of the evidence of "significant impairment to the physical health or emotional development of the child". In deciding whether the grandparent will be allowed to paricipate in the suit to request custody, the Court must consider the evidence submitted in the light most favorable to the grandparent, and decide whether such evidence would enable reasonable and fair-minded people to determine whether the burden of proof is satisfied. Evidence of drug use, criminal behavior, child abuse or neglect, mental, emotional or financial instability will be considered by the Court.
If you are a grandparent who has been cut off from access to your grandchildren, you have important legal rights. You should assert those rights so that your grandchildren have the benefit of your example, love and time. Christiansen Law Firm has had extensive experience representing grandparents in custody and access cases. To learn more about your rights and how to assert them, contact the family law attorneys of Christiansen Law Firm in San Antonio or Houston.