Grandparents' Rights in Texas
It is not uncommon for grandparents to play an active role parenting and caring for their grandchildren. This may happen when an adult child returns home after being on his/her own, when an adult child gets divorced, or for a variety of reasons wherein the child's parent cannot be around.
The significant legal question is when may a biological or adoptive grandparent obtain court-ordered access to his/her grandchild.
The United States Supreme Court addressed this question in the case of Troxel v. Granville, 530 U.S. 57 (2000). At issue was a Washington state statute granting broad access by grandparents to their grandchildren. The Supreme Court held that so long as the child's parent adequately cares for his/her child (i.e., is fit), then there will normally be no reason for the state to inject itself into the private realm of a family to further question the ability of that parent to make the best decisions regarding the child's rearing.
The Texas statute found at Tex. Fam. Code Sections 153.432 through 153.434 provides for limited court-ordered access to one's grandchildren under very specific circumstances.
A March 2007 opinion by the Texas Supreme Court seemingly makes it more burdensome for grandparents to seek court-ordered access to their grandchildren. See In re Derzapf, --- S.W.3d ----, 2007 WL 867013 (Tex.), 50 Tex. Sup. Ct. J. 563.
The opinion sets a very high standard for grandparents to overcome. Basically, fit parents have a fundamental right to decide what is best for their children, and a court cannot substitute its judgment for the parents, even if a better decision could have been made.
The Texas Supreme Court held that only when biological or adoptive grandparents can show by a preponderance of the credible evidence that denial of access to the child will significantly impair the child’s physical health or emotional well-being will a court order that a biological or adoptive grandparent have access to the child. However, the opinion does not provide any guidance as to what would constitute a significant impairment of the child's physical health or emotional well being. Case law will have to develop to provide more guidance, but this practitioner speculates that the child's circumstances would almost warrant intervention by Children's Protective Services.
While some classify the opinion as "anti-grandparent," others feel it is a victory for the fundamental liberty interest that fit parents have the right to determine how their child is raised -- including whether or not grandparents are a part of the mix.
