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22 May 2023

Do Grandparents Have Visitation Rights in Texas?

When families go through difficult times, it's not just parents and children who are affected. Grandparents may find themselves in the middle of custody battles or facing legal battles over restrictions on seeing their grandchildren. Keep reading to learn more about grandparents' visitation rights in Texas.


The Law to Know About Grandparent (and Other Non-parent) Custody or Possession of Children

When it comes to grandparents' rights in Texas, it's important to understand the law and your legal options. Texas law limits the circumstances under which grandparents can petition the court for access to their grandchildren. The burden of proof is on the grandparents: grandparents who want custody or visitation rights must prove that it's best for the child and show that the parents are a risk to the child.


In Texas, a grandparent must have standing to sue under Chapter 102 of the Texas Family Code, and grandparent visitation rights that they may request are described in Chapter 153 of the Texas Family Code. Grandparents may seek possession or access to see their grandchildren through a Suit Affecting the Parent-Child Relationship (SAPCR) if specific requirements are met in those statutes, and under case law discussed below.

It is important to understand that while grandparents may be awarded visitation or custody, it is not an easy task and the court will always consider the best interest of the child.If these facts are being litigated, it's important to consult an experienced lawyer for legal guidance and strong court evidence presentation.


grandmother with grandchild looking at leaf


Troxel v. Granville (SCOTUS 2000)

In the landmark case of Troxel v. Granville, the United States Supreme Court limited the rights of grandparents to visitation with their grandchildren. The court held that a fit parent has the right to decide who can and cannot see their child, including grandparents and extended family. However, courts can order grandparent visitation if it is in the best interest of the child and certain circumstances are met.


In re Derzapf (Texas 2007)

In re Derzapf is a decision from the Supreme Court of Texas, issued after Troxel, that also involved grandparents seeking custody of their grandchild. The court ruled that a grandparent seeking custody must prove by a preponderance of the evidence that denial of custody would significantly impair the child's physical health or emotional well-being. The court also found that a grandparent seeking custody should not be given priority over a fit parent. However, if one or both the grandchild's parents either are unfit or have relinquished their parental rights, the court may consider the best interest of the child and award custody to a grandparent. It is important to note that each case is unique, and the court will consider the specific circumstances of the situation before making a decision on custody. As a grandparent, it is important to understand the law and seek legal guidance if seeking custody or visitation rights.


In re C.J.C. (Texas 2020)

In re C.J.C. is another decision from the Supreme Court of Texas that cleared up an area of confusion under Texas law about whether a lesser burden of proof existed for a nonparent seeking custody or visitation rights in a modification as opposed to an original suit. If a non-parent wants custody or visitation rights, they must still prove that the parent is not capable before being awarded them. This is because the parent's constitutional rights must still be respected. The one exception is if a parent was previously found unfit by the court and was not appointed as a managing conservator in the order being changed, there is no heightened burden for a modification petition.


Custody Statutes and Limitations for Grandparents in Texas

As a grandparent in Texas, it's important to know that while you do have the legal right to request visitation or custody of your grandchildren, it's difficult to accomplish. In Texas, grandparents can only get custody or visitation rights for their grandchildren in certain situations, and they need to prove that the parents are not fit to take care of the child and that it is in the best interest of the child. Essentially, the evidence provided must be substantial and prove the parents put the child in danger.


Visitation Statutes and Limitations for Grandparents in Texas

In Texas, grandparents have the right to petition the court for visitation or custody of their grandchildren under certain circumstances. These circumstances include situations where a biological or adoptive parent has not had their parental rights terminated, the grandparent proves that denial of visitation or custody would significantly impair the grandchild's physical health or emotional development and wellbeing, or if the grandparent is the parent of a parent of the child who has been incarcerated, found incompetent, or does not have court-ordered access to the child. However, it is important to note that while visitation statutes exist, grandparents do not have an absolute right to visitation and must prove it is in the child's best interest. Grandparents seeking court ordered access must also show the remaining parent is unfit to have the court order custody or visitation over that parent's objection. [1][2]


grandfather giving granddaughter a piggyback ride


Can a Grandparent with Custody Receive Child Support from the Child's Parent in Texas?

According to the Texas Family Code, a grandparent who has legal custody of a child has the same rights and responsibilities as a parent, including the right to receive child support. The parent of the child may be ordered by the court to pay child support directly to the grandparent. However, the court may also consider factors such as the parent's income and ability to pay. Only parents can be ordered to pay child support, so a grandparent cannot be a child support obligor.


Resources Available for Grandparents in Texas


Resources Available for Grandparents in Texas

1. Child Support Division: As a custodial grandparent, you can apply for child support. Call (800) 252-8014 for assistance.

2. Lawyer Referral Service: If you have questions about child custody or visitation, contact the Texas State Bar's Lawyer Referral Service at (800) 252-9690.

3. Access and Visitation Hotline: For questions about child custody and visitation, call the Access and Visitation Hotline at (866) 292-4636 or visit their website.

4. Texas Law Help: This online resource provides free legal information and answers to common legal questions. Visit Texas Law Help at their website.

Remember, grandparents' rights vary from state to state. It's important to understand Texas' specific laws and seek legal advice if needed.


Challenges in Obtaining Legal Visitation and Custody of Grandchildren in Texas

Obtaining legal visitation or custody of grandchildren in Texas is difficult. As stated above, the burden of proof is on the grandparents. The court requires that grandparents provide evidence the parent is unfit and poses a danger to the child, such as proof that the parent is incarcerated, abuses drugs or alcohol, is abusive to the child, is neglectful, or endangers him or her in some other way. The Texas Family Code does allow grandparents to seek visitation, but the actual ability to obtain just court ordered visitation without custody, in light of the cases discussed above, is (in this author's opinion) essentially impossible. Therefore, a grandparent's best chance of having a legal right to the child is to seek custody by showing the parents are unfit and granting the request would be in the child's best interest.


grandparents holding grandchildren


Importance of Seeking Legal Advice from a Knowledgeable Attorney for Grandparent's Rights in Texas

If are a grandparent seeking visitation or custody of your grandchildren in Texas, it is important to seek legal advice from a knowledgeable attorney. As discussed above, it's very difficult to get ordered custody or access unless there are serious allegations against the parents. A qualified attorney can help assess the merits of your case to know whether you have a viable claim. Contact Longino Law to have a consultation with a family law attorney. Tristan Longino, the firm's founder, is Board Certified in Family Law and served as a presiding judge of a family court in Harris County, hearing and ruling on these very kinds of cases.


Frequently Asked Questions


Do Grandparents Have Visitation Rights in Texas?

1. What are the legal rights of grandparents regarding their grandchildren in Texas?

Texas law gives biological or adoptive grandparents the ability to request possession or access to their grandchild. However, strict requirements must be met.


2. What is the process for requesting visitation time and access to a grandchild?

To request visitation and access through the court, a person may file a Suit Affecting the Parent-Child Relationship (SAPCR), or a request to modify an existing court order.


3. What should I do if the parents are denying me access to my grandchild?

You may be able to request visitation rights if the child's parents are denying you access. However, this is subject to the best interest of the child standard and will require compelling evidence that the child's well-being is in danger; the law presumes a parent acts in their child's best interests, including when a parent keeps you from seeing the child.


4. Can grandparents get primary custody of a grandchild in Texas?

It can be challenging for grandparents to gain custody in Texas, as the law heavily favors parents' rights. However, if the grandparents can prove that the child's health and welfare are in danger and that living with them would be in the child's best interest, they may have a chance.


5. How can grandparents establish standing in Texas?

Grandparents must establish standing, or eligibility to bring a lawsuit to court, to petition for visitation or custody under Chapters 102 or 153 of the Texas Family Code.


6. Do grandparents have rights in Texas if a parent dies?

If a parent dies, the surviving parent's rights are given primary consideration in Texas. However, grandparents can petition for visitation or custody if they can prove that the surviving parent is unfit and that their access to the child is in the child's best interest.


8. Where can I find more information on grandparents' rights in Texas?

The State Law Library, Texas Access, and TexasLawHelp.org provide resources and guides on grandparents' rights in Texas. However, it is important to note that the State Law Library cannot provide individual legal advice.

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