Grandparents’ visitation: Overcoming that the parents know best

Most grandparents have a close relationship with their grandchildren and desire to continue that relationship even after there is a disruption in the relations between their grandchild's parents. Sometimes, unfortunately, they must go court in order to secure their visitation rights.

A uniform law, applicable throughout the United States, would greatly simplify matters, but there is no such law and there is not likely to be a law within the near future. In general, family matters is an area of the law that is left up to each state to decide. Every state, in fact, has a grandparents' visitation statute, with its own set of requirements and procedures.

Texas statutory law

In Texas, the statute in question provides that grandparent visitation (that is, "reasonable possession of or access to" a grandchild) of grandchildren can be authorized by a court if one or more adoptive or biological parent has parental rights, if it is in the children's best interests, and if an additional listed circumstance is found to exist:

  • The parents have divorced;
  • The parent has abused or neglected his/her child; or the parent has died, has been found incompetent, or has been incarcerated;
  • The parent-child relationship has been terminated by a court order; or
  • The grandparent has lived with the child for six months or longer.

All the above is optional, that is, subject to the court's discretion. The statute does not give the grandparent the absolute right have visitation rights. Also, the Family Code states that a request for visitation is not allowed if "the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent."

As far as "best interests" are concerned, the grandparent is required to "overcome the presumption" that a parent denying access is doing so for the child's best interests. More specifically, the grandparent has to prove that a denial of visitation would harm the child's physical or emotional health.

Case law

In addition to the Family Code provisions, judges deciding visitation matters consider case law, that is, the rulings made by other judges in similar court cases. The seminal federal Supreme Court case relating to grandparents' visitation rights is Troxel v. Granville, decided in 2000, which involved a Washington statute. The court declared that the statute, which only required that visitation rights be in the children's "best interests," was overly broad and invalid. The court, in upholding its decision, said that "there is a presumption that fit parents act in the best interests of their children," reasoning that has been used by many other state statutes, including Texas.

As of 2004, seven appellate cases in Texas addressed whether the Family Code provision was constitutional. None of the cases decided that the provision was unconstitutional on its face. Language in one of the opinions, In re Pensom, decided in 2003, which stated that the grandparent had to prove either that a parent was not fit or that preventing a grandparent's access would harm the child was later included into the Texas statute by the legislature.

Conclusion

If you are seeking visitation with your grandchild, and have encountered resistance to your visitation request by one or both parents of the grandchild, you should immediately contact an experienced family law attorney, who will investigate the facts of your situation and determine whether you have grounds to legally seek visitation.