Grandparent Visitation Rights in Texas: When Parents Say No

Do grandparents have visitation rights in Texas?

Yes, but they are limited. A biological or adoptive grandparent can ask a court for possession of or access to a grandchild, and the court can grant it over a parent's objection only when the conditions of Texas Family Code § 153.433 are met.

The limits come from the constitutional right of fit parents to raise their children. Texas law presumes a parent acts in the child's best interest, and a grandparent must overcome that presumption with evidence.

When a court does grant access, the order sets a schedule for the grandparent, much like a parent's visitation order, and it can be enforced the same way. Grandparents can also ask for access in a modification suit when an order about the child already exists, instead of starting a new case.

Parents can always agree to grandparent time without a court finding anything. An agreed order is often the most durable result, because the parents chose it.

Can I get visitation with my grandchildren if their parents refuse?

Only if your situation fits the statute. The court can order access over a parent's objection only if all of these are true:

• At least one biological or adoptive parent still has parental rights.
• You prove that denying access would significantly impair the child's physical health or emotional well-being.
• You are the parent of one of the child's parents, and that parent was in jail or prison during the three months before you filed, has been found incompetent, has died, or does not have actual or court-ordered possession of or access to the child.

This means that when your own son or daughter still has the children, or regular time with them, and objects to your visits, the court generally cannot help. When a parent cuts off all contact, the question is not whether that is fair but whether the child is being harmed in a way you can prove.

How difficult is it to get grandparent visitation in Texas?

It is difficult by design. The grandparent carries the burden of proof, and the standard is significant impairment to the child, not the child's or grandparent's loss of a good relationship.

The petition must include an affidavit with facts showing that denial of access would significantly impair the child. If the facts, assumed true, would not support relief, the court must deny the request and dismiss the suit (§ 153.432). If the court grants access over a parent's objection, its order must state that each condition was met (§ 153.433).

Grandparent access also ends as a possibility if both parents have died, lost their rights or signed relinquishments and the child is adopted, or is being adopted, by someone other than a stepparent (§ 153.434).

What rights do grandparents have when parents get divorced?

A divorce does not by itself give grandparents any right to visitation. The same § 153.433 test applies.

In practice, grandparents usually see the children during the time of the parent who is their own child. If the divorce order gives that parent regular possession, the grandparent generally has no separate claim. If that parent ends up with no access, the grandparent may meet the third condition, but still must prove harm. Parents can also agree to write grandparent time into their parenting plan. See visitation schedules.

A divorce can also be the moment a grandparent's role changes in practice, for example when the grandparent has been the after-school caregiver. Raising that with both parents while the parenting plan is still being drafted is often easier than asking a court to add it later.

Do grandparents have rights after one parent dies?

They can, and this is the situation where grandparent visitation is most often sought. The death of the grandparent's own child satisfies the third condition of § 153.433.

The grandparent still must show that denying access would significantly impair the child. Evidence that the grandparent was a major part of the child's life before the death, and how the child has done since contact stopped, carries weight. If both parents have died, a relative within the third degree has standing to seek custody, not just visitation (§ 102.003).

Grief changes families. A surviving parent who remarries or moves away may pull back from the other side of the family without meaning harm. Courts know this, so the case turns on the child's well-being, not on the adults' hurt feelings. Records of the child's counseling, school changes or health after the loss can matter more than anything the adults say.

What evidence do grandparents need for a custody or visitation case?

Grandparents need specific facts that show harm to the child, supported by records and people who saw it. Opinions about a parent's choices are not enough.

• How often you cared for the child, for how long, and in what role.
• Changes in the child's health, behavior or school performance since contact stopped.
• Counselor, school or medical records, where available.
• Witnesses outside the family who know the child.
• Facts about the parent's situation that fit the § 153.433 conditions.

A lawyer can tell you early if your facts are strong enough for the affidavit. John B. Polk reviews these cases at a consultation.