Friday, October 19, 2007

grandparent’s rights in texas

There is probably not a hotter topic than grandparent's rights in Texas. "Rights" typically refers to the right to have access and/or possession of a grandchild. There are scenarios where a grandparent can seek custody of a grandchild, which I may discuss later, but this topic is on visitation.

The issue of visitation with a grandchild typically does not arise in the context of a healthy family relationship, i.e. mom and dad and child together in a loving home. When that family unit is disrupted, either through divorce, separation, or death is when you will typically run into the situation where a grandparent is alienated from their grandchild. It seems the most common these days is the death of one of the parents of the child. You can imagine how difficult these issues become on the grandparents whose child has died and the surviving parent of the child. It seems that the more time that passes, the more difficult the situation becomes as the surviving parent establishes a new life. It seems to me that these are no win situations as both sides have legitimate arguments and everyone is hurting.

I do not recall grandparent rights cases coming up much early on in my career (in the90's). That could be because I was a fledgling attorney who did not attract that type of business, or maybe it is the baby boomer thing. In any case, I know about it now and it is a big topic.

Where things seemed to have really sparked was when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The grandparents in this case were the Troxels. They were the paternal grandparents and their son had died. The surviving parent (Granville) allowed visitation with the Troxels but the visitation was limited. The Troxels wanted more visitation and sued the mother. The statute In Washington that allowed them to sue provided that "any person" could file a suit seeking visitation of a child and the trial court would grant it if it found it was in the best interest of the child. You can see how broad this statute was…any person? The garbage man? This statute was bound to take a fall, which it did. To finish the story, the grandparents got less visitation than they wanted, but more than the mother wanted to give. She (the mother) appealed it all the way to the Supreme Court of the United States.

The Supreme Court found two problems with the statute as written. First, it in no way took into account the parent's decisions regarding what was best for the child. The only people that were really involved was the person that filed the lawsuit and the judge who imposed what they thought was best. The second problem was that the grandparents had not proven that the mother was unfit. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. The grandparents apparently did not even address this issue, and why would they because the statute did not require it. The second issue, the presumption, is the big one and is the one that has been used throughout the states and is now the standard here in Texas. Ultimately the Supreme Court found the Washington Statute unconstitutional.

Since Troxel was entered, the Texas courts have been scrambling to determine whether our statutes (as they existed then) were constitutional. In every case they found that it was. I will not go into each case here as most are now obsolete with the new statutes that are in place (to be discussed later). The first case to really adopt the "presumption" discussed above was the In Re: Pensom case out of San Antonio decided in 2003. That is the case that we relied upon for years to determine what we had to prove or disprove and now is reflected in the grandparent visitation statute. Over the years, the legislature has been active in the process as well…honing the grandparent statute so that it will comply more closely with the ruling Troxel. I will discuss the current version of the statute in the next post.

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