I’m a grandparent, can I sue for visitation of my grandchild?

Can I ask a Texas Court for visitation rights for my grandchild?


Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.


How does Grandparent visitation work in Texas?


This was recently discussed in an appellate case, In the Interest of K.R.P.C., a Child, in the fifth district of Texas at Dallas. In In the Interest of K.R.P.C., the court decided that a grandparent does not have a right to court-ordered visitation just because they allege it would be in the best interest of the child. If you know anything about family law, then you probably know that most of the decisions in Texas family law cases involving children involve broad judicial discretion and are usually supposed to be based on a legal standard referred to as the “best interest of the child.” However, because of the Supreme Court decision mentioned earlier, when deciding whether to give a grandparent visitation the court is not supposed to even consider the best interest of the child unless the grandparent can prove that their case should fall under the narrow statute allowing a grandparent to gain court ordered visitation in Texas. As was mentioned earlier, when it comes to grandparent visitation the court is supposed to be concerned with upholding the rights of a parent and not concerned with what they think is best for the child. Accordingly, the court held that a grandparent must allege one of the explicit ways that a grandparent can petition the court for access under the Texas Family Code.


What are the exceptions that allow for grandparent visitation in Texas?


The limited circumstances where the court is even allowed to consider granting grandparent visitation are when the parent who is the child of the grandparent petitioning the court: 1. has been in jail or prison for the three-months preceding the filing of the case by the grandparent, 2. has been found by a court to be incompetent (someone who is given a guardian or is legally unable to make decisions for themselves), 3. is dead, 4. does not have access to or court-ordered possession of or access to the child. If the grandparent’s child that is the parent does not fall into one of the four categories the court must dismiss the case, there is no discretion on the part of the judge to decide that a grandparent should get visitation based on the grandparent being a really great person or disagreeing with a parent’s decision to not allow a grandparent to see a grandchild. This is good news if you’re a grandparent whose child who is the parent falls into one of these defined categories as far as being able to petition the court for visitation because these are all legally ascertainable categories and are easy to prove. But if you don’t clearly fall into one of these exceptions you are pretty much out of luck as far as getting court-ordered visitation as a grandparent.


What does this mean for my case?


In the case before the appellate court the grandparent’s son who was the father of the grandchild was not in jail or prison, did not have his parental rights terminated, was not dead, and had not been found by a court to be incompetent. This is one of those rare cases in family law where there is a 100% right answer on what a judge must do in this case under Texas law. The Trial Court Judge was required to dismiss the case and that is what they did. The court of appeals affirmed that this was the only option they had. Gaining legal visitation as a grandparent may not be the only legal route that you can take to ensure the well-being of your grandchildren. Contact Guest and Gray if you are a grandparent who would like to know what legal options you have concerning your grandchildren. We can discuss your case and let you know what types of actions you can take.

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