Texas is usually considered a difficult state for grandparents seeking visitation with grandchildren. The grandparent must "overcome the presumption" that a parent barring access is acting in the best interest of the child. In order to overcome this presumption, the grandparent must prove that denial would "significantly impair the child's physical health or emotional well-being."
Making grandparents prove that a child will suffer if grandparent visitation is denied is the so-called harm standard.
It is a higher standard than some states require. This language does, however, align the state with federal requirements as spelled out in the Supreme Court case of Troxel v. Granville. That is why Texas adopted this standard in 2005, echoing the judgment of the U. S, Supreme Court, which stated that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family."
Explanation of Texas Statutes
Texas laws seem convoluted but are actually rather straightforward. Let's start with the deal-breakers. A grandparent may not request visitation if both parents are dead or have had their parental rights terminated. In addition, a grandparent may not request visitation if a child is adopted by a person other than a stepparent, or if such an adoption is in process. One last provision: A grandparent may not request visitation if both parents have relinquished their parental rights to child protective services or any other person or entity acting as a managing conservator.
Those are the conditions that may not exist. What are the conditions that must exist?
In Texas the grandparent requesting access to a grandchild must be the parent of a parent who is dead, incarcerated, has been found by a court to be incompetent or for other reason does not have "actual or court-ordered possession of or access to the child." In plain language, if your child who is the parent has access to your grandchild, you are expected to gain access through that parent and not through the court system.
In such cases, you do not have standing to sue for visitation through the court system.
The Harm Standard
Once grandparents determine that they have standing to sue for visitation, they must turn to the difficult task of showing that the child in question will suffer if denied contact with grandparents. This is a formidable task. In the Derzapf case, described below, the court found that even if the grandchildren suffered a "lingering sadness" over the absence of their grandparents, this circumstance did not meet the harm standard.
How exactly can grandparents meet this difficult harm standard? Recent course cases suggest that the testimony of experts may be required. The testimony of ordinary people who have observed the children may not be considered sufficient by the court. Obtaining expert testimony can be difficult for grandparents who do not have access to their grandchildren. Neither do they have ready access to school records or medical records. One suggestion is that the grandparents' lawyer ask for a preliminary hearing. In that hearing, the lawyer can request an evaluation by a professional along with requesting relevant records.
Relevant Court Cases in Texas
It may be helpful to look at a couple of textbook examples of Texas law in action.
These are cases that followed the Supreme Court case of Troxel v. Granville (2000) and the 2005 modification to Texas law.
In the 2006 case In re: Karen Mays-Hooper, a grandmother was awarded visitation rights with a grandchild following the death of her son, who was the child's father. The mother appealed, and the Texas Supreme Court sided with the mother. The court's opinion was that the case was "virtually the same" as the case of Troxel v. Granville, and thus "the judgment must be the same, too."
In the 2007 case In re: Ricky Derzapf, the grandparents, the Johnsons, provided extensive care for the Derzapf children following the death of their mother. When the father tried to reassert his parental prerogatives, the Johnsons sued for visitation rights. Their request was first granted and then overturned on appeal.
The Texas Supreme Court ruled that the grandparents had not shown that a lack of visitation would harm the children. The opinion states, "A court may not lightly interfere with child-rearing decisions made by Ricky — a fit parent by all accounts — simply because a 'better decision' may have been made."
In the 2008 case In re: Chambless, the grandparents sued for visitation with their grandson after his father died in a motorcycle accident. They argued that their grandson needed to know his paternal family, especially his two half-brothers. Their arguments were supported by a report from a social worker who did not appear in court. The lower court recessed the hearing and awarded the grandparents visitation until such a time as the court could hear the testimony of the social worker. The mother appealed on the grounds that her testimony was not heard. The Texas Supreme Court found that the lower court "abused its discretion" in awarding visitation and ordered that the visitation order be vacated.
See Texas Statutes 153.432-434. You may also want to visit Texas Law Help and a page for grandparents created by the Texas Attorney General's office. The Texas State Law Library also maintains a page with resources about grandparents' rights.