Grandparents’ Rights Explained: When You Can Seek Visitation or Custody

The relationship between a grandparent and their grandchild is a special one. Grandmothers and grandfathers can play a very important role in a child’s development. At the same time, grandparents only have limited child-related rights under Texas law. Courts can order grandparent visitation, or even grandparent custody, but they will only do so in limited circumstances when certain requirements are met. Our Houston family law attorney helps grandparents protect and enforce their rights in Texas. 

Texas Law Presumes That a Fit Parent Acts in the Child’s Best Interest

Grandparents’ rights cases, along with other family law matters, are largely handled under state law. In Texas, it is crucial to understand that parental rights take precedence over non-parental rights. Among other things, that means that grandparents do not have an automatic right to visitation or custody in Texas. Federal law holds similarly. The Fourteenth Amendment protects a fit parent’s fundamental right to make decisions concerning the care, custody, and control of the parent’s child. Consistent with that constitutional protection, Texas Family Code § 153.002 now expressly creates rebuttable presumptions that a parent acts in the child’s best interest and that remaining in a parent’s care, custody, and control serves the child’s best interest.

Grandparent Visitation is Available Only in Specifically Defined Circumstances

It is possible for a grandparent in Texas to get legally-protected, court-ordered visitation rights. With that being said, it can only happen in a relatively narrow set of circumstances. Texas Family Code §§ 153.432 and 153.433 govern a biological or adoptive grandparent’s request for court-ordered possession of or access to a grandchild. The grandparent may file an original suit devoted to access or seek modification of an existing order. The petition must include an affidavit alleging specific supporting facts showing that denial of contact would significantly impair the child’s physical health or emotional well-being. If you have any questions about filing for protected visitation rights as a grandparent, our Houston family lawyer can help you put together a strong, compelling petition. 

The Grandparent Must Prove That Denial of Access Would Cause Significant Impairment

As part of a petition for grandparent rights in Texas, there are certain threshold factors that must be satisfied in order to bring a successful claim. In other words, these are the conditions that must generally be met before such a petition can even be filed in the first place. 

Notably, meeting a threshold condition, such as the death or incarceration of the grandparent’s adult child, does not automatically establish a right to visitation. Under § 153.433(a)(2), the grandparent must overcome the parent’s best-interest presumption by proving, by a preponderance of the evidence, that denying possession or access would significantly impair the grandchild’s physical health or emotional well-being.

Seeking Custody Requires Standing and a Heightened Evidentiary Showing (Higher Bar)

Texas generally uses the term conservatorship rather than custody. Still, the concept of child custody is relatively similar in Texas as it is in other jurisdictions. A grandparent seeking authority over the child’s residence, education, medical care, or other major decisions ordinarily requests appointment as a managing conservator. Under Texas Family Code § 102.004(a), a grandparent or another relative within the fourth degree of consanguinity may file an original suit requesting managing conservatorship if satisfactory proof shows that the child’s present circumstances would significantly impair the child’s physical health or emotional development. Standing may also exist when both parents, the surviving parent, or the existing managing conservator or custodian files the petition or consents to the suit.

Existing Orders, Adoption, and Termination Can Change the Analysis

When a prior custody order exists, a grandparent may need to proceed under Chapter 156. Modification generally requires proof that the requested change serves the child’s best interest and that relevant circumstances have materially and substantially changed. In a parent versus non-parent modification case, Texas law holds that the non-parent must overcome the fit-parent presumption by clear and convincing evidence when that presumption applies. A parent’s agreement to an earlier non-parent order does not, by itself, permit the non-parent to rely on that order to overcome the presumption later.

A Collaborative Approach is Generally Best in Grandparent Rights Cases

A child can benefit from a strong relationship with a grandparent. A grandparent can benefit from a strong relationship with a child and with the child’s parent(s), regardless of whether or not that parent is their own child. With that in mind, a collaborative approach is often the best approach for grandparent rights cases. Our Houston family law attorney provides solutions-focused legal representation that is designed to help our clients find the best answer for their specific case. We know that working towards an amicable resolution is usually the right starting point. At the same time, our trial-tested Houston family law attorney is always ready to fight aggressively to protect the rights and interests of our clients. 

How Our Houston Family Law Attorney Can Help 

In Texas, the legally protected rights of grandparents are far below the rights of the child’s parents. With that being said, a grandparent could be entitled to court-protected visitation (or even custody) for a grandchild in certain circumstances. These are complex, fact-specific cases. At Thornton Esquire Law Group, PLLC, we are a compassionate, solutions-driven family law firm that is always ready to take strong action to protect the rights of our clients. Your initial consultation with our Houston grandparent rights lawyer is completely confidential and without further obligations. 

Call Our Houston, TX, Grandparent Rights Lawyer Today

At Thornton Esquire Law Group, PLLC, our Houston family law attorney has the knowledge and experience to take on the full range of grandparents’ rights cases. If you have any questions about grandparent custody or grandparent visitation, please call us at (888) 378-1784 or contact us online for a confidential consultation. With a law office in Houston, we handle family law cases in Harris County, Brazoria County, Montgomery County, Fort Bend County, and Galveston County.