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What are possible hurdles for grandparents seeking child custody?

The exercise of grandparents' rights under Texas law is not quite as straightforward as the exercise of such rights by a child's parents. By virtue of a U.S. Supreme Court ruling it's been determined that grandparents don't have a Constitutional right of access to their children's children.

At the same time, every state in the union has recognized the rights of grandparents to seek some level of visitation with their grandchildren. That does not mean that exercising that right is a walk in the legal park. There may be no denying that you love your grandchildren and want to be a positive influence in their lives, but there are still some hurdles to clear before a request for access or possession is entertained by the courts.

Not surprisingly, the first of the typical hurdles is going to be that one or the other of the parents of the child has to approve of the interaction. The presumption by the state is that the parent has the first right to decide what is in their child's best interest. If grandparents and parents are on the outs or some other issues exist, it could be a block.

Presuming restrictions do exist, grandparents may still petition the court for access, but the appeal may not get anywhere unless one of the following circumstances exists:

  • One of the two parents has died
  • One of the parents is incarcerated for some reason
  • A parent can be shown to suffer from some condition that makes them incompetent
  • The child is not now living with one of the parents

Divorce, neglect, abuse, legal termination of parental rights or a showing that a child has lived with the grandparents for six months or more may also lead the court to grant visitation rights. But in the end, as in all things where children are concerned, the biggest factor weighing in such decisions will be what the court considers to be the best interests of the children.

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