Sixteen years ago, in a rare Supreme Court foray into family law, the Justices decided Troxel v. Granville, a case that was seen as sharply limiting grandparents’ rights. In some parts of the country, such an interpretation may have been appropriate. But here in Texas, Troxel largely confirmed the existing provisions in the Family Code.

If children are “caught in the crossfire” of their parents’ divorces, grandparents are often confined to the rear area, to continue the analogy. As a result, grandparents sometimes find themselves without voices. Making matters worse, an angry parent often targets the other spouse’s parents and seeks to “get back at” the ex-spouse by cutting off contact between grandchildren and grandparents. The good news is that grandparents have legal rights in these situations.

Overcoming the Parental Presumption

The so-called “Father Knows Best” presumption is deeply embedded in the Family Code. The relevant portion of Section 153 states that there is a “presumption” that “a parent acts in the best interest of the parent’s child.” This idea extends to who the children do, and do not, have relationships with.  There are several ways for grandparents to overcome the parental presumption.

If a parent voluntarily relinquishes “actual care, control and possession of the child to a nonparent” for at least a year, the presumption does not apply. But relinquishment is hard to define. In many cases, parent and child live with the grandparents, who assume bill-paying duties as well as primary child-care duties. At some point, a line is crossed between assistance and relinquishment, and the jury often determines where to draw that line.

The voluntary relinquishment provision only applies to nonparents seeking full custody. Most grandparents seek visitation rights, and to secure these rights, they must show:

• Denial of possession or access would “significantly impair the child’s physical health or emotional well-being,” a standard that is not as daunting as its sounds, and
• The requesting party is either in loco parentis or is the parent of the non-primary managing conservator.

The grandparents must establish these elements by a preponderance of the evidence, which means “more likely than not.”

Making a Case for Access

Overcoming the presumption is only step one, because such a showing only puts the grandparents on equal legal footing with the parents. To convince a judge to order visitation, which is normally one weekend a month, the grandparents may introduce evidence regarding:

• Prior Relationship: Did the grandparents and grandchildren actively spend time together, or were the grandparents more like babysitters?
• Future Relationship: Are the grandparents able, physically and otherwise, to continue that prior relationship?
• Emotional Support: It is not enough to buy things for the grandchildren. Grandparents must be caregivers in every sense of the word.

As always, the final orders must also be in the best interests of the children.

Grandparents are often able to carve out time with the children of their divorced children and in-laws. For a free consultation with an experienced family law attorney in McKinney, contact the Law Office of Bryan D. Perkins. We routinely handle cases in Collin County and nearby jurisdictions.