Article:
Grandparent Rights

The scope of grandparental visitation under the Texas Family Code is relatively narrow, with access strictly limited to specific fact situations. Most importantly, a grandparent has no right to intervene into an intact nuclear family over the opposition of the biological parents. The family unit therefore consistently takes a front seat to grandparents rights.

However, once the original family unit is fractured, whether by death, divorce, incarceration, or termination of one parent’s rights, the grandparent may seek visitation. For example, where a new step-nuclear family is created the law specifically allows grandparent visitation to continue even over the objection of the marital partners. Only if the parental rights of both parents are terminated and a new family takes over by adoption will the right of grandparent visitation end.

Grandparent visitation has been in the news quite a bit lately. While Texas law is quite narrow, other states’ laws on this issue vary considerably. The U.S. Supreme Court in the case of Troxel v. Granville (2000) recently decided that grandparents’ rights must be subordinate to the constitutional right of a fit parent to raise his or her child as the parent sees fit without unwarranted interference from the state. The issue is not settled, however. The court issued several opinions, none of which commanded a majority. Moreover, the statute being construed was an extraordinarily liberal law from the State of Washington that provided that anyone could seek visitation with a child and failed to provide any deference to parents’ rights.

The next logical question is what type of visitation can a grandparent expect or hope to receive from the court. Although no statutory uniform possession order applies to grandparent visitation, the Family Code provides that the court shall order reasonable access to a grandchild by a grandparent if: (1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; and (2) access is in the best interests of the child provided other specific criteria are met. At first glance, an apparently mandatory “shall” regarding grandparent visitation certainly sounds binding. But, because the order continues to depend on whether such access in the best interest of the child, judicial discretion controls. Typically, the frequency and duration of the visitation between grandparents and grandchildren will primarily rely upon the past quantity and quality of contact between the grandparent and grandchild and the specific facts of each case. Only through consultation with qualified, experienced counsel can more specific answers be expected.

— Michael R. Puhl