Grandparents' Visitation

Texas Appeals Court Vacates Judgment Giving Grandmother Possession and Access to Grandchildren

Published on: March 7, 2025 | by Kelly McClure

A party must establish standing to maintain a lawsuit. If the party does not have standing, the court does not have subject-matter jurisdiction. The parties cannot waive subject matter jurisdiction. The Texas Family Code sets forth when a non-parent has standing to pursue access or pursue to a child. A non-parent seeking access or possession of a child must establish standing pursuant to the requirements set forth in the applicable statute.

Chapter 153 of the Texas Family Code sets forth when a grandparent has standing to pursue a claim for access or possession. Pursuant to § 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denying them possession or access “would significantly impair the child’s physical health or emotional well-being” and state supporting facts. The court then determines if the facts would be sufficient to support possession or access under § 153.433 if true. The court may order possession or access under § 153.433 if at least one parent’s rights have not been terminated, the grandparent proves denying possession or access would significantly impair the child’s health or well-being by a preponderance of the evidence, and the grandparent’s child has been incarcerated for the three months before the petition, is incompetent, is deceased, or does not have possession or access to the child. In a recent case, a father and maternal grandmother each appealed a court order granting the grandmother possession and access.

Grandmother’s Petition

In December 2021, the grandmother petitioned for possession or access to her grandchildren. The father filed a counterpetition, asking for a judgment naming him sole managing conservator. In February 2022, the court rendered temporary orders naming the grandmother a “nonparent” possessory conservator with standard possession.

The trial court granted the grandmother possessory conservatorship after a trial. On the father’s motion, the trial court modified the judgment to remove the grandmother’s designation as “conservator,” but still granting her possession and access.

Texas Appeals Court Reverses Dismissal of Grandmother’s Petition for Visitation

Published on: March 20, 2024 | by Kelly McClure

Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild. The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts. The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control. The law presumes that a fit parent acts in their children’s best interest. Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being. The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child. Rolle v. Hardy. Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent. A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born. His mother then petitioned for grandparent possession of or access to the child shortly after the birth. The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child. She claimed denying her access to the child would significantly impair his health and well-being.

Texas Grandmother Failed to Prove Standing in Child Visitation Case

Published on: December 27, 2023 | by Kelly McClure

Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville. A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit. Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child. This allegation and supporting facts are required for the grandparent to show they have standing.

Grandmother’s Petition

A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild. The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit. The child was born in April of 2020. Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.

In her affidavit, the grandmother alleged the mother was an “unfit parent.” She stated one of the mother’s friends had molested the mother’s older daughter. She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child. The grandmother stated she returned the child to avoid prosecution. The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child. The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing. The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times. The grandmother also claimed she was better able to take care of the child financially.

Texas Fit Parent Presumption Not Applicable in Certain Modification Proceedings

Published on: September 20, 2023 | by Kelly McClure

Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators. Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child. Tex. Fam. Code 153.131.

A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.

According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator. A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession. A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence. The order stated the father had failed to appear at trial and defaulted. He was appointed possessory conservator.

Texas Appeals Court Reverses Order Granting Grandparents Visitation

Published on: July 6, 2023 | by Kate Mataya

The U.S. Supreme Court held in Troxel v. Granville that parents have a fundamental right to make decisions regarding the care custody and control of their children. There is a presumption under Texas family law that being raised by their biological parents is in a child’s best interest. Additionally, Texas law presumes that a fit parent acts in their child’s best interest. Essentially, it is presumed that a fit parent should decide whether a grandparent should have visitation with the child. In addition to other requirements, a grandparent seeking possession or access to a grandchild under Tex. Fam. Code § 153.433(a) must overcome that presumption by showing by a preponderance of the evidence that denying visitation would significantly impair the child’s health or emotional well-being. Tex. Fam. Code § 153.433(a) applies when the grandparent is the parent of the child’s parent who has been incarcerated for the three month period before the petition is filed, has been found incompetent, is deceased, or does not have possession of or access to the child.

A mother recently challenged a trial court’s order granting the paternal grandparents possession of and access to her children, arguing there was no evidence the children’s physical health or emotional wellbeing would be significantly impaired if it was denied.

Grandparents Petition for Visitation

The children’s father sadly died in December 2020. The appeals court’s opinion described a close relationship between the children and their paternal grandparents before their father’s death. In fact, the parents and one of the children had lived with the grandparents for more than four years and then moved next door.

Texas Grandmother Awarded Custody

Published on: May 30, 2023 | by Kelly McClure

Texas family law only allows non-parents to seek custody of children if they meet certain statutory requirements. For example, a grandparent or certain other relatives may petition for managing conservatorship if doing so is necessary because the child’s present circumstances at the time suit was filed would significantly impair their health or emotional development. Tex. Fam. Code Ann. § 102.004(a)(1).

The parents had an on-and-off relationship for several years, according to the appeals court’s opinion. Both parents and the maternal grandmother had lived in Colorado. The mother, who was pregnant with their second child, moved to Texas in late 2017 with the older child. The grandmother followed in 2018. The father remained in Colorado.

The mother was killed in a car accident in May 2019. The father filed a petition for writ of habeas corpus, alleging the grandmother was illegally holding them. His petition was denied.

Texas Court Denies Grandparents’ Request to Register Utah Visitation Order

Published on: April 23, 2023 | by Kelly McClure

iStock-1175949984-300x200 A child custody determination from another state may be registered so it can be enforced in Texas pursuant to Tex. Fam. Code section 152.305. A request must be sent to the Texas state court with a sworn statement the order has not been modified. The requestor must also identify who was awarded custody or visitation in the determination. The court will give the people identified in the request notice so they can contest the registration. To successfully contest the registration, the contesting party must show the prior court lacked jurisdiction, the determination has been vacated, stayed or modified, or they were not given proper notice before the court issued the determination order. Tex. Fam. Code 152.305(d). The grandparents of two children recently appealed a court’s denial of their request to register a foreign child custody determination containing their visitation rights.

After the parents divorced in Utah in 2016, the maternal grandparents were given grandparent time and certain related rights pursuant to a stipulation order in 2017. They later petitioned for modification, but the Utah court found it no longer had jurisdiction because the parties and children no longer lived in the state. The Utah court dismissed the petition, also noting in the order there had been a separate adoption case and termination of the mother’s parental rights.

Request for Registration

The grandparents requested registration of the divorce decree, stipulation order, and order dismissing their modification petition in Texas. Their request identified the father as the parent awarded custody or visitation in the custody determination.

Texas Grandmother Lacked Standing for Visitation

Published on: September 14, 2022 | by Kelly McClure

iStock-902725964-300x200 Parents have a fundamental right to make decisions about their child’s care, custody, and control. There is a presumption that a fit parent acts in the child’s best interest. A non-parent seeking visitation or custody over a parent’s objection must overcome the fit-parent presumption. They must have evidence of behavior or conduct that will probably result in the child’s health or well-being being significantly impaired. A non-parent seeking custody or visitation must also show that they meet the requirements for standing under Texas family law.

Grandmother Files Custody Suit

A mother recently challenged a court’s judgment awarding visitation to the child’s paternal grandmother. According to the appeals court’s opinion, the paternal grandmother petitioned to be appointed as possessory conservator of the child, but subsequently amended the petition seeking possession and access. She alleged denial of possession and access would significantly impair the child’s health and well-being. Her affidavit stated she was the parent of the child’s father and the child’s father had been incarcerated for more than three months. It further stated that the child lived in her home while the father temporarily had primary care of the child because of the “mother’s instability.” She also stated the father was incarcerated because she had made a report “to protect the child.”

The mother did not file an answer or appear at the remote trial.

Texas Appeals Court Denies Grandmother Standing in Custody Case

Published on: March 13, 2022 | by Kelly McClure

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225 A fit parent generally has the right to determine who has access to the child. In some cases, however, people other than the parents may seek visitation or even custody of the child. When someone other than a parent seeks rights in a Texas case, they must meet certain conditions. In a recent case, a mother challenged a court’s orders granting possession and access to the child’s paternal grandmother.

According to the appeals court’s opinion, the trial court appointed the parents joint managing conservators and gave the father the exclusive right to determine the child’s primary residence. The teenage parents and child lived with the paternal grandmother for about two years. Several months after the father went to prison, the mother and child moved out.

Mother Files Suit; Grandmother Intervenes

The mother petitioned for modification, seeking sole managing conservatorship. The grandmother filed a petition in intervention, asking to be named joint managing conservator with the right to determine the child’s primary residence or possession and access in the alternative.

Texas Grandmother Must Overcome Fit-Parent Presumption to Become Possessory Conservator

Published on: September 22, 2021 | by Kelly McClure

iStock-1147846829 Grandparents sometime take on a parental role in the lives of their grandchildren. In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children. The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.