Can the Grandparents of a child force the parents to allow visitation?

The answer to this question is difficult. Texas is a strong parent's rights State. In other words, most of the time, what the parents say goes. However, there are limited situations where the law may allow the Grandparents to obtain rights with respect to the children.

I am a grandparent, can I get custody of my grandchild or grandchildren?

Grandparents can only file for custody when they can show that they have "standing," or the right to file a lawsuit with respect to the grandchild. This is true whether the grandparent is the one filing or if the grandparent is just filing an intervention (seeking to get involved in an existing case, such as a divorce). The following are the situations where standing can be shown:

(1) The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit; or,

(2) The grandchild and the grandchild's guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit, but only if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit; or,

(3) The present circumstances of the grandchild would significantly impair his or her physical health or emotional development; or,

(4) Both of the grandchild's parents, a surviving parent if one parent is deceased, or the managing conservator either filed the lawsuit for the grandparent to have managing conservatorship or have agreed to it.

If any one of the four situations above exist, then a grandparent may be able to seek custody. The court must still find that custody in favor of the grandparent would be in the best interests of the grandchild.

Can I get Court-Ordered visits with my grandchild?

The rules in Texas regarding grandparent visitation are complicated. A grandparent may seek visitation with a grandchild if each of the provisions below exist, together with at least one of the other special circumstances below:

(1) At the time the lawsuit is filed, at least one biological or adoptive parent of the grandchild has not had that parent's rights terminated; and,

(2) The lack of grandparent visitation would significantly impair the grandchild's physical health or emotional well-being; and,

(3) The grandparent is actually a parent of a parent of the grandchild; and

(4) [one of the special circumstances below exist]:

(a) The parent has been incarcerated in jail or prison during the three month period preceding the filing of the lawsuit; or,

(b)The parent has been found by a court to be incompetent; or,

(c) the parent is dead; or,

(d) The parent does not have actual or court-ordered possession of or access to the child.

The idea behind this is that the grandparent's son or daughter (the parent through whom they seek access) must be "unavailable" for some reason (i.e. - incarceration, death, incompetency, or denial of visitation) before the Court will act. Otherwise, the Courts will assume that the parent him or herself can facilitate the visits, and if the parent is not willing to do so, that this parent essentially "knows best."