Gaining Access and Possession to Your Grandchild in Texas
The Fit Parent Presumption from Troxel
In 2000, the United State Supreme Court delivered an opinion concerning visitation rights of grandparents. The case Troxel v. Granville set the standard for a person’s right to interefere with parental decision-making. In the Troxel case, the Court decided that a parent is presumed to make fit decisions for their children. At that time in Texas, statutes were in place which gave grandparents broader possession and access rights. After the case in 2000 was decided, Texas changed their laws regarding grandparent possession and access to reflect the United States Supreme Court’s opinion.
The Court alluded a parent has a fundamental right to make child-rearing decisions without having unnecessary interference from the courts. Therefore, a statute that allows any person, at any time to petition possession and access rights of a child is unconstitutional. The fundamental right includes a parent’s decision to grant possession and access of their children to others, including the grandparents of the child. It is presumed that if a parent denies possession or access to the child’s grandparent, it is in the best interest of the child. The fit parent presumption established in Troxel is a constitutional standard and the supreme law of the land.
In 2004, Texas restructured possession and access rights of nonparents to reflect the fit parent presumption set out in Troxel. The presumption can be rebutted with evidence asserting that the parents’ denial of access and possession to a grandparent significantly impairs the child’s physical or emotional well-being.
How it Works in Texas
If parents have denied access and possession rights to the grandparents of a child, the grandparents must overcome a strenuous burden to gain court-ordered access and possession. A Texas court is permitted to grant access and possession rights to the child’s grandparents over a parent’s opposition only when all of the following are met with specificity.
(1) At least one of the child’s parent’s parental rights has not been terminated.
(2) The grandparent has overcome the “fit parent presumption” by showing evidence which proves denying the grandparent access and possession will significantly impair the child’s physical health or emotional well-being.
(3) There has been a denial of possession from the child’s parent.
(4) The grandparent must show they are the parent of the parent of a child that you are seeking access and possession of, and that child’s parent is either incarcerated three months prior to filing suit, incompetent, dead, or does not have possession or access to the child.
Again, this is a very difficult burden for grandparents to overcome. If you have been denied access or possession rights to your grandchildren and wish to have court-ordered rights to see them, please contact our firm today. Obtaining access or possession to your grandchild can be a very daunting process. Our legal professionals are prepared with the knowledge and skill that you need to help obtain court-ordered possession or access to your grandchild.
Texas Family Code Statutes:
- § 153.432 – Suit for Possession or Access to Grandchild
- § 153.433 – Possession of or Access to Grandchild
- § 153.434 – Limitation on Right to Request Possession or Access