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The truth about enforcing grandparents' rights in Texas

There is no disputing that the face of the typical American family has undergone a significant transformation over the last several decades. Indeed, it's not the slightest bit uncommon to find areas throughout the U.S. where traditional nuclear family households, single-parent households and same-sex parent households can all be found on the same street.

In fact, another type of family makeup that can -- and should -- be added to this list are grandparent households, meaning those homes where grandparents either play a vital role in the upbringing of their grandchildren or have assumed the role of primary caregiver.

If you don't believe it, consider statistics from a 2013 study by the Pew Research Center, which determined that roughly 7.7. million children in the U.S. live with a grandparent and that roughly 3 million of these children were raised solely by a grandparent.

It is worth noting that those grandparents looking to secure possession and access (i.e., physical custody) of their grandchildren here in Texas will likely find themselves facing a challenging legal battle.

That's because the Texas Family Law Code dictates that grandparents must satisfy three conditions in order to secure court-ordered possession and access:

  • They must have standing to file the original petition.
  • They must overcome the presumption of parental fitness.
  • They must present proof showing significant impairment to the grandchild will occur absent access to their grandparents.  

It is these second and third requirements that legal experts say present the most significant obstacle, as grandparents can only overcome the presumption of parental fitness by proving by a preponderance of the evidence that their grandchild's physical and mental welfare will be significantly impaired if the court fails to award them the desired possession and access.

To put this in perspective, consider that state courts have referred to these requirements as both constituting a "high threshold" and, perhaps even more telling, "strict."

In fact, experts indicated that appellate courts in the Lone Star State have routinely reversed the decisions of lower courts, on an abuse of discretion standard, where visitation or custody rights were granted to grandparents without the testimony of an expert witness.

All this is not to say that it is impossible for grandparents to secure visitation with or custody of their grandchildren. Rather, it only serves to underscore how important it is for people in this situation to consider consulting with an experienced legal professional who can explain the law, examine their options and fight to enforce their rights as grandparents.

Source: Texas Lawyer, "Overcoming parental presumption for grandparent custody," Angela Laughlin Brown, Aug. 19, 2014

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