Historically, grandparents have played a vital role in the development, nurturing, and caregiving of their grandchildren. Questions tend to arise, however, when a grandchild’s parents separate, divorce, pass away, become incarcerated, are found to be otherwise unfit, or when the parents isolate the grandchildren from the grandparents. When these questions arise, what are a grandparent’s rights?
In June 2000, in Troxel v. Granville, the U.S. Supreme Court issued a 6-3 decision on grandparents’ visitation rights. “It is the most important case ever decided with regard to grandparents’ visitation rights,” says Charla Bradshaw, managing shareholder of KoonsFuller.
Troxell overruled a Washington State law that permitted judges to grant visitation to any interested party so long as the visits were in the best interest of the child, even if the parents objected. The Troxel v. Granville decision was unclear because the majority of the justices agreed that Troxel should be decided a certain way. However, each justice had a different reason for doing so, which resulted in six separate court opinions. The court held that, “The Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
“The unclear legal opinions in Troxell made it difficult for state courts to interpret the decision, but the bottom line is that Troxell severely limited grandparents’ rights,” Bradshaw says. “With this ruling, the uphill battle for grandparents began.” Basically, the Troxell ruling meant that grandparents had to overcome the presumption that parents act in their child’s best interest as they make decisions related to a child’s care, custody, and control. Many states amended their statutes regarding grandparents’ rights after Troxell. The Texas statutes on grandparents’ rights have been modified since Troxell. And, it seems that every legislative session in Texas since Troxell, bills have been filed to further modify grandparents’ rights. In fact, there are several bills pending before the Texas legislature this session.
Often, grandparents are found in primary caregiving roles for their grandchild. This may be on a full-time basis when the grandchild’s parents are unable to provide for the child, or in the case of emergency or tragedy. It is these situations when a grandparent may serve as the grandchild’s primary caregiver. On the other hand, there are times when grandparents are excluded from seeing their grandchild by one or both of the parents. Usually a legal battle begins when grandparents want to maintain primary caregiving or contact with their grandchildren.
“Usually a legal battle begins when grandparents want to maintain primary caregiving or contact with their grandchildren.”
According to Bradshaw, there are three types of suits grandparents can attempt to pursue. The first two types of suits involve “conservatorship,” one being custody. The third type of suit is for possession and access to a grandchild, or visitation. The first battle a grandparent must overcome is to establish that they have a right to bring the suit, called “standing.” Bradshaw says standing can be complex, but some of the things a court may look at with regard to grandparent standing are as follows:
- The grandchild’s present circumstances would significantly impair the child’s physical health or emotional development.
- The denial of access to the child by the grandparent would significantly impair the child’s physical health or emotional development, and the parents are incompetent, deceased or do not have court-ordered possession and access to their child.
If a grandparent has standing, they may proceed with their suit. The proof required in a grandparent case depends on what type of case the grandparent is pursing. If the grandparent is seeking custody of his or her grandchild, the burden on the grandparent is different than if the grandparent is seeking visitation with their grandchild. For example, for grandparent custody of a child, the court may look at whether the appointment of the parents would not be in the best interest of the grandchild because doing so would significantly impair the child’s physical health or emotional development; the best interest of the child; whether family violence has occurred between the parents; and, whether awarding the grandparent custody is in the best interest of the child. For visitation, the court may look at whether a parent’s rights have been terminated; whether the denial of access by the grandparent to the child would significantly impair the child’s physical health or emotional development; and whether a parent is incompetent, incarcerated, deceased, or has actual court-ordered possession and access to their child.
Says Bradshaw, “Every case involves a unique set of facts, and grandparents should consult with a family lawyer to consult about their rights. The laws for grandparents’ rights can be quite complex. It is dangerous to obtain legal advice about grandparents’ rights on the internet as valuable grandparent rights could be lost.”
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