Articles Posted in Grandparents’ Visitation

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.

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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.

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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.

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iStock-1175949984-300x200A 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.

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iStock-902725964-300x200Parents 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.

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judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A 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.

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iStock-1147846829Grandparents 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.

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iStock-902725964-scaledIn Texas custody cases, it can be very difficult for a non-parent to obtain custody or visitation of a child over the objection of a parent.  In some circumstances, however, a non-parent (such as a grandparent) has the right to file suit seeking custody or visitation.  One such circumstance is when the person has recently had care, custody, and control of the child for at least six months.

In a recent case, a grandmother sought custody of her son’s child after her son’s death.  According to the appeals court’s opinion, the child was born in 2014.  From 2014 to 2020, the child and parents lived in various places, including the paternal grandmother’s home in Wilson County.  From 2017 to 2019, the child went to daycare in Wilson County.  From August 2019 to January 22, 2020, the parents and child lived with the paternal grandmother.

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There is a strong presumption in Texas family law that it is in the child’s best interest for a parent to be awarded custody over a non-parent. In a recent case, a father appealed a judgment naming him joint managing conservator with the child’s maternal grandmother. A central issue in the case was the father’s argument that he should have been appointed the child’s sole managing conservator based upon the parental presumption.

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iStock-182358076Sometimes one or both parents move after a custody order is issued.  When parents move, they often want to modify custody and visitation.  However, if both parents have moved out of state, issues of jurisdiction may arise.  In a recent case, a father sought a Texas custody modification of a North Carolina custody order.

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