Under Some Circumstances, Grandparents Can Petition the Court for Custody or Visitation
Divorce frequently doesn’t just affect those directly involved; it can impact other family members as well, such as aunts, uncles, cousins, and grandparents. While in each state, custody and visitation is typically based on what is in the best interest of the child, in some states, statutory provisions can also provide for grandparent visitation after divorce in some circumstances.
Under Texas law, a biological or adoptive grandparent may request possession of or access to a grandchild by filing a lawsuit, arguing that the denial or possession of or access to the child would significantly impair the child’s physical health or emotional well-being. A court can authorize grandparent visitation if it is in their best interest and the parents are divorced, the parent abused or neglected the child, the parent has died, been incarcerated, or found incompetent, or the child has lived with the grandparent for at least six months.
The court may also order reasonable possession of or access to the grandchild by the grandparent if:
- At least one biological or adoptive parent of the child has not had their parental rights terminated;
- The grandparent overcomes the presumption that a parents acts in the best interest of the child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair their emotional well-being or physical health; and
- The grandparent requesting possession or access is an actual grandparent and the parent has been incarcerated in the three-month period before the petition is filed, is incompetent, dead, or does not have actual or court-ordered possession of or access to the child.
Any order granting access or possession to that child—if over a parent’s objection—must very specifically state that these three conditions have been met at the time it is granted.
A grandparent may not request possession or access to the grandchild if:
- Each of the biological parents has died, had their parental rights terminated, or executed an affidavit waiving interest in the child or relinquishment of parental rights; and
- The grandchild has been adopted or is the subject of a pending suit for adoption (by someone other than the child’s stepparent).
Scott M. Brown & Associates provides compassionate counselors and strong advocates who understand the frustration and uncertainty involved in custody and visitation issues after divorce. Contact us today to discuss your legal options.