Originally published by Francesca Blackard.

Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met. First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child. Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being. Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child. TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children. The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California. The grandparents supported the family so the parents could save up to buy the home. After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight. The grandparents would take the children to school and attend school functions. The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics. The mother’s friend testified the parents had a tense and unhealthy relationship. There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense. The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies. He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

The mother sadly died in 2018. The children stayed with their grandmother for several days and the oldest child told the grandmother they were going to live with their other grandparents in California.

The grandparents promptly filed suit seeking sole managing conservatorship. Although they obtained a temporary restraining order to keep the father from moving the children from the county/ the children went to live with their paternal grandparents in California when it expired.

The grandparents amended their petition to seek possession and access to the children under the grandparent access statute. Following a trial, the court found the grandparents had proved by a preponderance of the evidence that denying them possession or access would significantly impair the health or well-being of the children. The court granted the grandparents possession for one weekend during the fall and spring semester and seven days during the summer. The grandparents were also allowed phone, Skype, or FaceTime access. They were also allowed to send cards, letters, and gifts.

The father appealed. In this case, the only element at issue was whether the grandparents had overcome the presumption the father was acting in the children’s best interest. The father argued the grandparents had not submitted evidence of any impairment to the children from denial of access. He testified the children were doing very well and had not shown any need for psychological treatment or counseling. They lived with his parents, where the oldest had her own room and the boys shared a room. They were physically safe and doing well psychologically.

The grandparents argued the father had not provided counseling for the children and planned to deny all access to the grandparents. The appeals court noted that the leading cases overturning orders granting grandparent access involved evidence that the parent would not deny the grandparent all access to the child. The father testified he would not allow any access or possession of the children unless ordered to do so by the court.

The appeals court found no evidence denying the grandparents access would significantly impair the physical health of the children, but there was sufficient evidence it would significantly impair their emotional well-being. The grandmother testified denying them access would not be in the children’s best interest. The mother’s friend and the father’s friend each testified they did not think the father was acting in the children’s best interest. The grandmother testified the children had lost their mother, grandmother, and home, and had moved to live with grandparents they had rarely seen. There was evidence regarding the father’s heavy drinking and potential alcoholism.

The father testified that the children did not exhibit any emotional turmoil. He said they did not ask about their grandparents. He testified they were healthy and doing well.

The appeals court found the trial court could have reasonably disbelieved the father’s evidence and found the grandparents overcame the parental presumption by a preponderance of the evidence. The appeals court affirmed the order.

Although it can be difficult for grandparents to get access and possession of their grandchildren, it is possible under certain circumstances. This case may have turned on the father’s intent to deny all access to the grandparents. If you are seeking or fighting grandparents’ rights, a knowledgeable Texas custody attorney can advise you and fight for your rights. Call McClure Law Group at 214.692.8200 to set up a meeting to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.





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