Grandparent Visitation: In Texas, Can a Grandparent Sue for Access to a Grandchild?

It can be very difficult for a grandparent to get visitation rights to a grandchild. In 2000, the United States Supreme Court held that a parent has a fundamental right to decide who has access to a child. Troxel v. Granville, 530 U.S. 57 (2000). This case established the Troxel “fit parent” presumption.

In Texas, a grandparent must rebut the “fit parent” presumption by proving that the grandchild’s physical health or emotional well-being would be significantly impaired if the grandparent’s possession or access was denied. This is a very high standard; for example, evidence showing that grandchildren displayed anger, began wetting the bed and had nightmares, and suffered from losing contact with their material family members was not sufficient to establish significant impairment under the Texas Family Code. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010).

To obtain possession, the grandparent must prove all five of the following points:

  1. The grandparent must prove that at least one of the grandchild’s biological or adoptive parents has not had that parent’s parental rights terminated
  2. If a parent has custody of the grandchild, the grandparent must rebut the “fit parent” presumption as mentioned above. If a non-parent has custody of the grandchild, however, several courts have found that the grandparent does not need to rebut the “fit parent” presumption.
  3. The grandparent must prove that the parent intends to completely deny the grandparent from having possession of or access to the grandchild.
  4. The grandparent must prove that he or she is the parent of the grandchild’s parent.
  5. The grandparent must prove one of the following is true about the grandparent’s son or daughter who is the parent of the grandchild:
    • He or she has been incarcerated for at least 3 months before the petition was filed;
    • He or she has been judicially declared incompetent;
    • He or she is dead; or
    • He or she does not have actual or court-ordered possession or access to the child.

If a grandparent is able to prove all of these points to the court’s satisfaction, the grandparent can be granted the right to have possession of or access to the grandchild.

If you are a grandparent wishing to gain access to your grandchildren, call my office at 682-234-2006 to schedule your free consultation.

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