Texas grandparent rights: a primer

Texas law allows grandparents, in limited circumstances, to bring actions for access to their grandchildren.

The loving bond between grandparent and grandchild is priceless. Whether they are called Grandma and Grandpa, Nana and Papa, Nonna and Nonno, Abuela and Abuelo, Grandmother and Grandfather, or something else entirely, many of us have countless fond memories of cherished time spent with our grandparents. Sometimes, however, a grandparent is prohibited from having contact with his or her grandchild, and that can be traumatic for everyone involved. Texas law recognizes the importance of the grandparent/grandchild dynamic, and in certain circumstances will allow a grandparent to bring a legal action for visitation.

The law

Texas Family Code Section 153.433 sets out the circumstances in which a grandparent can seek access to his or her grandchild. These are deliberately few in number, as both state and federal case law grants deference to the rights of parents to decide who can or cannot have access to their children, but include:

  • One or both parents is incarcerated (and has been during the three-month period preceding the filing of the action)
  • At least one parent has been declared incompetent by the court
  • One parent is deceased
  • At least one parent doesn't have "actual or court-ordered possession of or access to the child"

Important distinctions

Furthermore, grandparents can only seek access to and visitation with their grandchildren if at least one parent is still alive and the parental rights of at least one biological parent have not been terminated or voluntarily waived. Under Texas law, if the child has been adopted by anyone other than a stepparent, the grandparent has no legal claim for visitation (see Texas Family Code Section 154.434 for more information).

In addition, the burden is on the grandparent, under Texas Family Code Section 153.433 (2) to overcome the presumption that the child's parents are acting within their rights to limit access. Pursuant to this, grandparents must show that it serves the child's best interests (and protects his or her physical health or emotional well-being) to maintain the grandparent/grandchild relationship.

Case law has expanded slightly upon the circumstances set forth in the Texas Family Code for grandparent visitation. According to information provided by the Texas State Attorney General's office, grandparents can also seek visitation rights if:

  • The parents have divorced or separated (and the custodial parent is limiting access to the grandchild)
  • One or both parents abused or neglected the child
  • The child has lived with the grandparent for six months in the previous year preceding the filing of the action

Are you a North Texas grandparent seeking visitation with your grandchildren? Would you like the assistance of an experienced and compassionate family law attorney to guide you through this often-difficult process? If so, contact the Dallas law office of Paula Lock Smyth by calling 214-646-1485 or sending an email.