grandparents visiting their grandchildren

Divorce is hard on families, and oftentimes the extended family isn’t really factored into the equation when it comes to the children involved. If you are a grandparent and are being shut out of your grandchildren’s lives, it’s important to learn about the visitation and custody rights you have as a grandparent.

Do You Have the Right to See Your Grandchildren?

Unfortunately, being a grandparent does not give you the right to see your grandchild. In Troxel vs. Granville, the Supreme Court ruled that just parents have the right to make decisions concerning the care, custody, and control of their children. Basically, this means that if a parent doesn’t want you to have visitation rights, you aren’t allowed to.

Parents’ rights trump grandparents’ rights, and courts rule in favor of what is best for the children. As a grandparent, you can seek for visitation privileges, but you must prove that visitation is in the child’s best interest.

In Texas, you also must have these factors in line:

  • At least one parent (biological or adoptive) must have parental rights of the child
  • You can prove that denying grandparent visitation would harm the child’s emotional or physical well-being, or
  • You are the parent of the child’s parent and the child’s parent has been incarcerated for at least three months, has been declared mentally incompetent (by a court), has died, or does not have court ordered visitation with the child

But Can You Get Legal Custody of Your Grandchildren?

A court won’t interfere with the parent/child relationship unless the child’s basic emotional and physical needs are not being met. And you have to clearly prove those needs aren’t being met if you want to gain custody.

You can file a lawsuit in a court to ask for custody of a child, but before you prepare to file a lawsuit, make sure these things are in order first:

  • The grandchild must have lived with you for six months, or
  • If the child lived with you for six months, but doesn’t now, the move out must have taken place within the last 90 days of when you filed the lawsuit, or
  • A court named you as a legal guardian, or
  • You can prove the child is being hurt by his/her caretakers or environment, or
  • Both of the child’s parents (or a surviving parent, the child’s court-appointed managing conservator or custodian) have agreed the child should live with you

If someone else has already filed a lawsuit (another grandparent, for example), you will need to “intervene.” To do this, you need to:

  • Have had a lot of past contact with the child, and
  • Prove the child is being hurt because of his/her environment or caretakers

What Are the Factors Influencing the Court’s Decision?

Parental presumption means courts usually assume it’s in the best interest of the child to stay with his or her parents. If this is called into question by you, the court will look at several factors:

  • What the child needs (physically and emotionally)
  • What the child wants
  • Who would be good at raising the child
  • If the child is in danger
  • If the home is safe and stable
  • The acts of the parents (like committing crimes or not taking care of the child)
  • And anything else the judge thinks is important

It’s a hard road for a grandparent to win custody because parental presumption is a strong factor. You will have to strongly prove specific reasons the child would be hurt with his/her parents. If the parents are reasonably able to take care of the child now (even if they once weren’t), the judge will likely rule in favor of the parents.

It is possible to ask the court for the right to visit or have custody of your grandchildren, but it’s very difficult and is best undertaken with the help of a good attorney. Make sure you look for an experienced family law attorney who understands the law and your potential legal rights as a grandparent.

Need a Great Child Custody Attorney?

If you are a grandparent who has been shut out of your grandchild’s life and want to discuss your legal options, please contact Ben Carrasco at (512) 320-9126 or request a consultation online

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