Grandparent Visitation Orders in Texas

 Posted on November 01, 2022 in Child Custody

In an ideal situation, a child is brought up with healthy regular contact with both parents, as well as all grandparents. In reality, of course, things don’t always work out this way, particularly when it comes to grandparents. Grandparents often play a vital role in the development of children, but the law simply doesn’t give too much weight to grandparents when it comes to legal rights with respect to grandchildren. In the State of Texas, grandparents can obtain legal custody of a grandchild, but doing so is quite difficult. When compared with legal custody, grandparents may seek a visitation order with grandchildren. But, as we will discuss, even obtaining a visitation order from a Texas court isn’t easy. 

The Basics of Grandparent Visitation Orders

The difficulty in obtaining a visitation order for grandparents ultimately derives from the simple fact that parents have the highest influence when it comes to their children. Consider this point: if grandparents can simply acquire a visitation order without much trouble, how would this affect the parents’ ability to raise their child? Texas courts recognize the importance of grandparents, and the role that grandparents play in the lives of grandchildren, but courts must follow the principle that parents have the ultimate authority.

Grandparents can petition a court in Texas for a formal visitation order, but the court will only grant the order when certain conditions are present. One of the following conditions must be present in order for a Texas judge to grant a visitation order to a grandparent: 

1. At least one parent, biological or adoptive, must currently still have parental rights over the child

2. A failure to grant the visitation order would result in harm to the child’s emotional or physical wellbeing

3. The child’s parent who is the son or daughter of the grandparent has died, or has been incarcerated for at least 3 months, or has been declared mentally incapable by a court, or currently lacks a visitation order with the child

Simply put, these conditions must exist or a Texas court will not grant visitation rights to the grandparent. These conditions show that obtaining such an order is a fairly substantial hurdle. Chief among these conditions is the second one: in essence, a grandparent needs to show that the parent’s decision to deny access would result in harm to the child.  In other words, grandparent visitation orders are extremely difficult to obtain and are not granted based on a showing of the best interest of the child.  The parent’s right to make decisions of association are paramount.  

Texas Presumes a Parent’s Decision is Consistent with Child’s Best Interest

A cursory examination of the case law shows us that, in practice, obtaining a visitation can be difficult even when these conditions are all seemingly present. For instance, in one well-known case, a Texas court denied a maternal grandmother’s request for a visitation order after the child’s mother passed away. The child’s mother had become seriously ill, and the grandmother took care of the child while the mother struggled with the illness. After the mother passed, the father gained sole custody, and promptly cut off all contact with the grandmother. 

In this situation, a casual observer may be shocked that the court would deny the visitation order to the grandmother. However, the court essentially deferred to the heavy presumption that parents “know what’s best” for their children. Although the denial of contact with the grandmother was unfortunate, the grandmother couldn’t present evidence that the child would be significantly harmed due to lack of contact. There wasn’t enough to overcome the presumption.

Contact The Ramage Law Group for More Information

In the future, we may return and discuss the specifics of grandparents obtaining custody over grandchildren. For now, if you want to learn more, reach out to The Ramage Law Group today by calling 972-562-9890.