If you are a grandparent struggling to visit your grandchildren over the objection of the parents, you may think your rights are being trampled on. Unfortunately, that is not true. You have no constitutional right to visit your grandchildren no matter how much you want to, how much they want to visit you nor how much they say they miss you.
It has long been considered the fundamental right of parents to make all decisions concerning their children, including control over who gets to visit them. In 2000, the U.S. Supreme Court confirmed that the Fourteenth Amendment’s Due Process Clause “protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” That means that parents may prevent grandparents from visiting their grandchildren since, unfortunately, the High Court could find no constitutional right conferred upon grandparents to visit their grandchildren.
The good news is that, subsequent to that Supreme Court decision, Texas enacted legislation that offers some hope to grandparents who want to visit their grandchildren over the objection of the parents. There are difficult hurdles to cross, but it may be done with the assistance of attorneys with experience in fighting for grandparent’s rights.
Requirements for Establishing Grandparents’ Visitation
It is not enough for grandparents to simply want to visit their grandchildren because they love them and want to see them. If a parent objects to visitation, referred to in Texas as access, determined grandparents may, under certain circumstances, petition the court for an order allowing them to visit, or have access to, their grandchildren.
According to Texas law, courts can award visitation to biological or adopted grandparents only if it is determined to be in the best interest of the children to award visitation over the objection of a parent. Grandparents must prove, by a preponderance of the evidence, that, according to the statute, “a denial of possession or access to the child would significantly impair the child’s physical health or emotional well-being.” Just because visitation would benefit the child or the child desires to see the grandparents is an insufficient reason to grant visitation. Even if the court agrees grandparents have met their initial burden, there is one more hoop they must jump through.
To Prove Grandparent Visitation Rights
Grandparents must then prove the existence of one of the following conditions or circumstances concerning the parent of the child they want to see:
- The parents are divorced.
- The parent abused or neglected the child.
- The parent has been incarcerated for at least three months.
- The parent has been found mentally incompetent.
- One parent is dead.
- The parent does not have access to the child or court-ordered visitation privileges.
- The parental rights of only one of the parents has been terminated.
- The child has lived with the grandparents for six months.
When Visitation is Not an Option
There are some circumstances under which grandparents may not even petition the court for visitation:
- If both of the parents have died.
- If both parents have had their parental rights terminated.
- The children have been adopted, or are in the process of being adopted, by someone other than their stepparent.
For more information about grandparent visitation rights, or if you need assistance with exercising your visitation rights, contact us at Bruman Law Group. Bruman Law Group is a firm of experienced family lawyers with over 27 years of legal experience. From divorce to child custody, Bruman Law Group has the expertise and sensitivity to deliver the positive outcomes you and your family deserve.
