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Grandparent's Rights
Every Child Deserves the Affection Only a Grandparent Can Offer
At The Law Offices of Michael P. Von Blon, we understand that visits with grandparents are a key part of a child's development. We also know that situations exist where the child of an unfit parent needs to be in a place where he or she is loved, cared for and nurtured. To ignore this can often lead to negative lifetime results.
Although the law limits what rights grandparents may have, whether you, as a grandparent may have certain rights is based on the unique facts surrounding your fact scenario. A thorough and detailed discussion may have to occur before a determination can be made by Michael Von Blon as to the options available to you as a grandparent. We encourage grandparents to contact our office as soon as a concern arises for powerful representation focused on establishing or maintaining the well-being of a grandchild.
Grandparent Rights to Seek Custody and Visitation
When parents go through a nasty divorce, it can not only affect the parents and their children, but can also affect the children’s relationship with their grandparents. Often, grandparents are cut off from their previously close relationship with their grandchildren, which can have lasting adverse consequences for the grandchildren.
If this occurs, what rights do grandparents have? That issue depends on the facts of the case. Grandparents are generally lumped into the same category as aunts and uncles with respect to rights of access, also known as visitation rights, as well as right to seek conservatorship, also known as custody.
Original Suits
First, if this is an original suit, meaning a prior court order has not been entered relating to these children, a non-parent such as a grandparent, aunt or uncle can only bring suit if he or she has legal standing to do so. Legal standing is a pre-requisite to even filing suit. If one does not have legal standing to bring the suit, the lawsuit will be dismissed before it even gets started.
Since Texas law favors parents over non-parents, providing a presumption that a parent acts in the best interest of their children, a non-parent or grandparent would only have standing to bring a suit in an original action if the child’s present circumstances would significantly impair the child’s physical health or emotional development, or both parents, or surviving parent consents to the grandparent bringing suit, the latter of which seldom occurs.
The emphasis is on “present” circumstances, not something that occurred a year ago. There needs to be current flaws in the parents, like neglect, substance abuse, or physical abuse that is currently affecting the physical and/or emotional well-being of the child. Evidence that a grandparent would provide greater opportunities for the child, a more stable environment or might make better decisions than the parent is not sufficient to allow a grandparent to prevail in their request for custody.
Since there is a statutory presumption favoring parents over non-parents, grandparents will fail in each and every case unless the grandparent can show that both parents fail to meet the needs of their children and this failure to meet the children’s needs is resulting in present circumstances that are affecting the children’s physical health and/or emotional wellbeing.
This is also true in cases where a grandparent simply seeks to have visitation rights. In the past, grandparents could bring a lawsuit to have visitation rights. However, Texas and most states follow a United States Supreme Court case that parents should be able to dictate who is and who isn’t allowed around their children, that parents are in the best position to determine and make these decisions.
However, even though this window of opportunity for grandparents seems small, consulting with a talented and creative family law specialist and reviewing the facts unique to your case may well open up this window.
Modification of Existing Orders
The rigid standing requirements for grandparents seeking custody and grandparental access to their grandchildren required in original suits is not the same in suits seeking modification of an existing order. Thus, the same set of facts that might not allow a grandparent legal standing to bring an original suit for custody or access, may provide legal standing to bring a modification suit.
This is simply because the presumption that a parent acts in the best interest of their children is not applicable in a modification suit. Consequently, a grandparent does not have to show that the child’s present circumstances would significantly impair the child’s physical health or emotional well-being to succeed in their lawsuit. Or to say it differently, a grandparent in a modification suit does not need to show that a parent’s actions are injurious to the child. The grandparent simply needs to show that circumstances have changed since the prior order was entered and that a modification as requested by the grandparent is in the child’s best interest.
Since this burden is substantially lower, many times grandparents may wait and see how things develop with the grandchildren’s living arrangements. However, if you have facts that you believe currently impairs your grandchildren’s physical health or emotional well-being due to drug use, physical or emotional abuse, neglect by parents and/or their significant other, and you believe waiting will also be injurious to their health and well-being, then you should consult with a board certified family law specialist as to what options are available to protect your grandchildren.