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.

You can visit my blog at http://chrislawyerblog.com/grandparents-rights/ for more information about me or to contact me.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

fyi…

When reading my posts, especially ones from way back, remember that the law is a constantly changing and fluctuating entity. Point being, something that was discussed a year ago may not be the law now. So take anything you read in my posts with a grain of salt, and always verify the information with a lawyer of your choice. Or if you cannot afford or find a lawyer, research your specific issues by going to the heart of the matter….the Texas Family Code to which I have provided a link to the right.

do it yourself divorce continued….

I have found an excellent resource for those of you out there pursuing your own "pro se" (representing yourself) divorce. I still think the first step is to contact your local district clerk's office and/or the court for their procedures. Additionally, the Texas Young Lawyers Associtation (TYLA) has put together some great information in assisting you through the legal quagmire. Their website is the www.tyla.org and more specifically the family law information can be found at www.tyla.org/family_law.html.

They have a "Pro Se Divorce Handbook" and "What to Expect in Family Court". Both of these are excellent resources as they pull the curtain back a bit from the process. They've done such a fine job that I think I may not need to do it myself. So it's on to a new topic…..

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

do it yourself divorce in Texas Part 2

Many months ago we discussed where to file your divorce and how to contact the clerks for help with your “pro se” divorce. In this episode we will discuss the starting paperwork.

If you are still unclear where to file, please review my earlier posts or log onto my website http://www.chrislawyer.com/, go to the “Resource Links” page and click on the Texas Family Code link at the bottom of “Organizations”. From there you want to go to Title 1, Chapter 6 - Suit for Dissolution of Marriage. The specific code sections are Sections 6.301 through 6.308. These should help.

Again, I am not your lawyer. I don't represent you unless you retain me and sign an attorney employment contract. The forms below are just for purposes of illustration and are not intended to apply in every case, or your case for that matter. If you use these, and they are wrong for your jurisdiction, or incomplete, do not blame me...I have warned you not to use them. To get up to date forms, go to your local law library or hire an attorney!

To begin a divorce you will need an Original Petition for Divorce. This document “petitions” the court for the relief you are seeking, or in English, tells the court what you want them to do.

The requirements for what is to be included in the petition are found following the instructions above for my website Sections 6.401 and 6.402.

Section 6.401 discusses the “Caption” for your pleading. The caption is the top part of the document as seen on the left.

Section 6.402 discusses the requirements for the language in the “pleadings” or in English, the “paperwork”. The statute is telling you that you need to list the grounds for divorce, which has been discussed earlier in my blog. Typically that will be “insupportability” which is the no fault divorce in Texas. The statue also tells you to not put factual allegations in your document, just the general requests for the court. To the left is a sample petition for divorce. Notice that there are no facts in there like "my wife beat me on the head with a frying pan", or "I want the

toaster oven from our wedding, and the lifetime supply of funnel cakes we won at the fair". No facts, just simple requests.

Remember, this is a simple divorce scenario with no property or children. Part 1 is the discovery level. It has to be included, but what it is is not really important at this point. If discovery is involved in your case, you need an attorney. Typically if your estate is less than $50,000 and there are no children, then it is Level 1. If there are children or the estate is worth more than $50,000 it is Level 2.

Part 2 is self explanatory. Part 3 is where you tell the court that you are in the right court because you met the residency requirement discussed above and in my prior post. Part 4 regards service. Any person sued for divorce in Texas is entitled to know that they are being sued for divorce. You can show the court that your soon to be ex knows about the divorce either by 1. having the constable serve them with papers or 2. having them sign a Waiver of Service. We will discuss this issue in later posts. Part 5 should be self explanatory and simply tells the court there has been no protective order filed. If one has, you need to make the court aware of it, and you made need a lawyer.

Part 6 is easy, date of your demise (i mean divorce) and the greatest day of your life (separation). Kidding. Not always fun and games...but sometimes it is! Part 7 is the grounds for divorce which has been discussed in earlier posts. Insupportability is the no fault divorce. You can list other grounds if you like, but you probably need an attorney if you are concerned about grounds for divorce. Part 8, children, none according to our scenario. If you have em, your form will look different as they will be listed in the "caption" and there are other sections to include regarding conservatorship, visitation and child support. If you have child related issues, you may need a lawyer.

Part 9 deals with property. This example says that there is property, but the parties are trying to reach agreements as to its division. Another example of language here would be "no community property was accumulated by the parties" or something to that effect. Part 10 is where you pray (and beg) for the court to give you a divorce. Just legal mumbo jumbo.

At the bottom you would sign it in the appropriate place and you are ready to file your documents. In my next post we will discuss how to file your petition for divorce.

These documents can be found at any law library in "form" books. Track down a legal library in your area and ask them for a form book for divorces. These are NOT the ones that you find at Borders, etc..., these are forms approved by the State of Texas and should provide you with the most reliable forms.

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

do it yourself divorce in Texas Part 1

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

This is a topic requested by a reader of this blog, and I thought it may be an interesting read and topic for some of you. This series will be a very general type of discussion of the procedures involved and may or may not apply to you. I will simply discuss a simple uncontested divorce in Texas with no children or no property. If you have children, or you have property, most of the procedures will apply to you, but your documents must have more information in them.

Just to be clear, I am not your attorney. I do not represent you. If you would like me to represent you, go to my website www.chrislawyer.com and send me an email. Once you have paid my retainer and signed a retainer agreement, then and only then will I represent you. Additionally, I am not advising you to take any action or refrain from taking any action...I am simply pulling back the curtain a bit to shed some light on things you may not know so that you can help yourself.

Part 1 of this discussion will begin with you reading my prior post on "where to file". If you are reading this, we know you are married and we know you want a divorce, so you have to figure out where to file. Typically it will be in the county where you are living, if you have lived there for longer than 90 days. Again, read my prior post. If you are still unclear, then your divorce may be more detailed than this blog is set up for. You will need an attorney if the answer is not abundantly clear.

Once you have determined where you are going to file, the first thing you should do is contact the "district clerk of court" in the county where you are going to file and ask them if they have any information packets for "pro se" divorces. "Pro se" simply means you represent yourself. Many courts have information for you that will be VERY beneficial in getting you through the process. DO NOT call the courts and ask them how to do it, or what you need to do because they will simply turn you away with the "we cannot provide legal advise" answer. All you are looking for is preprinted information that the district courts of that county may have prepared for pro se litigants (you). If they do not have any, fine. Where I practice in Dallas County and Collin County, I am pretty sure they both have preprinted information for pro se litigants when they are doing their own divorce.

If you do not know how to find your district clerk, log onto www.google.com and enter "District Clerk _____ County" with the blank being your county.

That is it for Part 1. I am going to keep this simple for you and for myself, so we are going to take it slowly and methodically. In Part 2 we will talk about the documents that you need to create that will need to be filed with the District Clerk of Court that you identified above.

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

your questions answered (or at least some of them)

“I have a question: There is a steak dinner on the line. How many times can you get married in the state of Texas? thank you-“

As many times as you can afford. If you give up fifty percent of your estate every time you get divorced, eventually you wont have enough money to get the marriage license….so maybe there is a limit! Hmmmm.

Of course it took me so long to respond that I fear the steak turned into beef jerky. Sorry.


"I have a question more so than a comment. I know a young soldier that got back from Iraq and was dating a female before he left for his duty. When he was away she found his check book and wrote check (good/bad), and claimed that they were married. He is trying to obtain is losses from her, but it seems that the "Informal Marriage" law is working in her favor. What can he do to clear his name and this matter. -Helpless Friend"

Hire a lawyer, and tell him to quit letting his girlfriends live with him. Smile.

"Chris, I am an attorney too. I have an interesting situation shaping up in probate court. An ex wife will be claiming that she and decedent were common law married at the time of his death (apparently based primarily on the fact that they remained friendly and he spent a few nights at her house). I think that the deadman's statute Evidence 601(b) should preclude her from trying to show his intent. Any thoughts?"

I agree with your evidentiary argument, but I am not sure intent will matter. She will have to establish that she meets ALL the criteria. It sounds like she will have a hard time proving that they cohabitated. Staying over a few nights is not even remotely close to cohabitating. Second, she will need to produce witnesses that say they held themselves out as married…and you can produce witnesses that say they didn’t. If she overcomes these, then you may need to argue about intent, etc…with regard to the “agreement” to be married.

If you get this post, keep me up to date with what happened.


"I am new to this Blogging thing but I really have a huge question about family law and my research took me to your blog. I have joint custody with my son's father. That was established in 98', now 2007 I want full custody of my son. The father has been in and out of jail for not paying child support. He's a truck driver that has no real schedule. His wife would pick up my son when he wasn't home so I was sharing custody with my son's step mother instead of him. Now the father says that he and his wife are getting a divorce but they are still living in the same home until other living arrangements can be made. If he goes through with the divorce or separation, how can I get full custody of my son since he's hardly ever in the same city as we live in? Stacey"

Stacey, there is just too much I don’t know to be able to answer your question (or not answer it). My suggestion is that you log onto www.findlaw.com and find a family attorney in your area. They also have a service called Legal Connection www.legalconnection.com that can match you up with a lawyer. Good luck.

"Since it says that you can’t get married again within 30 days of divorcing.....I'm wondering what if you were divorced on say the 2nd of Dec. then married someone else on the 9th of Dec. in another state and both of you still reside in Texas Is that marriage valid?"

I had another questions similar to this. To be honest, I really don’t know the answer to this question without doing some research (which I would be happy to do for a small feeJ)

I suggest that you read my earlier posts with regard to voidable and void marriages and see if you can find the answer in there. Voidable marriages can be fixed, but void cannot.

"If you have a void marriage do you still have to wait the mandatory 60 days after filing."

Not if you file a petition to declare marriage void. You can finalize it as quickly as you can complete the paperwork.

"If a man marries someone knowing while still married to someone else does the second marriage become void or does there have to be an annulment? If so, do the same guidelines apply to annulment as they do to divorce in Texas (i.e. the 60 waiting period after filing)? "

The second marriage is void and you have to file a petition to declare the marriage void. IT IS NOT AN ANNULMENT. There is no 60 day waiting period to finalize and annulment or a suit to declare marriage void.

This type of void marriage can be fixed however….just get the first marriage terminated and continue to live together as man and wife and hold yourself out as same. Voila, you are married.


"Is it possible to have a religious ceremony to "bless" an informal or common law marriage in Texas? I know some states, clergy is not allowed to perform the ceremony w/o a marriage license and w/o filing it. What is the case in Texas? "

Isn’t this really a question for the church? If they can, then you can…if they can’t then no, you cannot.


"Great site Chris. I also wanted to ask about obtaining divorce without a lawyer (don't worry--they won't go extinct). However this is for the more complicated case with a child in the mix. My wife and I are both PhDs with the same income and assets. We know exactly what we want, which is a 6/7 custodial arrangement (child spends 6 days with wife, one with me), equal division of assets (retaining joint ownership of real estate), and child support equal to 6/7 15% of my net income. Seems like since we know what we want we should just be able to file on our own (using one of the better interview-driven software kits). My wife and I work very well together negotiating these things. Comments? Perhaps a blog entry? -Thom "

Great idea Thom…I think I will try to post a blog segment on performing your own divorce in Texas. The problem you may run into is the “better interview-driven software kits”. I have never seen one that is any good. However, if you get along with your spouse now AND in the future then you should not have problems with her.

You need to make sure however that you meet all the court’s requirements. I would suggest calling the court where you would file and see if they have any pre-printed packets regarding pro se (represent yourself) divorces. They cannot give you legal advice, but sometimes that have a list of procedures.

"If I am about to try to prove my marriage was a valid informal marriage. Do me and my husband have to come to court if we have broken up? It has been way less than two years since we broke up. "

No, he does not have to be there if he waives being served and enters his appearance in that waiver. If he doesn’t then he is entitled to notice of the lawsuit and the hearing and may have to be there.

Get yourself a lawyer and they can help you through all of this.

"Chris, what happens in the case where a couple realize their marriage is void, they don't have kids and they don't also own any property, and they left the marriage immediately they realized the marriage was void, do they still need to go to court to declaration the marriage void. What happened was one of the parties thought his divorce was final when it actually wasn’t."

Well if there is no property and no kids, then I guess not. As far as Texas is concerned there is no marriage. Did you have a marriage certificate, ceremony, etc… If yes, you may have to have a proceeding because there is paper out there that could cause confusion down the road…again.
See above post for how to fix this situation…if you want to.

"Could you write some about custody? Do you have any advice (other than 'get real') for a father who is trying to get at least 50% custody of his kids? Both parents are good parents, and the father is very active in his children's upbringing - which is why I would like to see a 50/50 custody arrangement. Oh, and is there anything the father can do that would keep the mother from moving 100 miles (and 3 counties) away from the original place of residence with the kids? Thanks, and Happy Holidays "

I will try and get to custody eventually, but that is a HUGE subject and each case is really different determined by the facts of that specific case.

Yes, there is something you can do to keep her from moving…get a lawyer, file a lawsuit and ask for a residency restriction.


"Have a dilemma in Lubbock Texas. I have a child support order that the ex refuses to pay. She has never worked and never plans to really so I can’t garnish wages. The judgment is 8 years old and the obligor has remarried to a man with a successful business. Can I enforce this child support judgment against any of the obligor’s spouses assets or income since Texas is a community property state. If so I will have to do it soon because the child turns 17 in less than a year and I know the State Child Support Enforcement Agency will still be bogged up in government red tape with my daughter left out in the cold. Secondly will I, or can I renew it before the expiration date like a standard Judgment if I need more time to follow through on enforcing it myself? any help is greatly appreciated, Rick "

You do have a dilemma….you live in Lubbock! Kidding, I went to law school there. Yes, you can sue her for the back amounts. As long as you have an order, she is obligated to pay the court ordered amount every month, regardless of if she has a job or not. You would simply file a motion for enforcement by contempt.

Once filed and served, she would be ordered to appear. She can claim that she was unemployed if she likes, but that is only one piece of the puzzle. She also has to prove that she could not borrow the funds, nor knew of any source to get the funds. Sounds to me like she has plenty of funds she could have gotten her hands on. Courts aren’t stupid and typically do not buy the poverty argument. She could have gotten job couldn’t she? She is not disabled, correct?

As far as the limitations on filing…go to my website www.chrislawyer.com, click on the resources link, click on the Texas Family Code link, and look at §157.005.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!