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Grandparents’ rights are an emerging issue in family law throughout the country, and in the state of Texas. Our family law, divorce and child custody attorneys/lawyers, with locations in Dallas, Houston and Denton, Texas, feel that the bonds between children and their grandparents are special. Unfortunately, these relationships are often one of the first casualties of divorce. When child custody and child visitation is finalized, grandmothers and grandfathers (on the non-custodial parents’ side) often lose contact with their grandchildren through no fault of their own.
Our divorce, family law and child custody lawyers/attorneys in McKinney, Dallas, Denton and Houston, Texas notice that more and more grandparents are being asked to play a role in supporting their children and grandchildren. The rising rate of divorce and separation, as well as social problems like drug addiction and alcoholism has literally orphaned many children. Grandparents have stepped in to help fill this void and to provide much needed care and nurturing for their grandchildren. Our attorneys/lawyers that specialize in child custody, divorce and family law would like to help you keep the bonds with your grandchildren.
Introduction
In a perfect world, there would be no necessity for court-ordered visitation for grandparents. Grandparents and parents would work together to ensure liberal family visitation with grandchildren. Our world is imperfect. There are many scenarios in today's world that provide reasons, justified or not, for a parent to limit a grandparent's visitation with a grandchild. The fabric of our society is ever-changing, and the law oftentimes has trouble keeping up.
This article discusses the right of a grandparent to have visitation when a family unit fractures for reasons set out by Texas law. Such reasons in Texas include the incarceration of a parent, the death of a parent, the divorce of a parent, the abuse or neglect of the child, the parent-child relationship being terminated as to one of the parents, or the child actually residing with the grandparents. The terminology utilized by Texas law and the Troxel decision vary but this article uses possession, access and visitation interchangeably.
Next, this article addresses the Texas grandparent laws in the context of the Troxel decision. In doing so it becomes apparent that Texas law must be amended to ensure compliance with the United States Constitution as interpreted by the United States Supreme Court.
Texas Law
Texas law currently provides for liberal grandparent visitation with a grandchild. Chapter 153, Subchapter H of the Family Code governs grandparent visitation. The Texas scheme provides as follows:
Sec. 102.004 Standing for Grandparent to File Custody Suit A grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that: (1) the order requested is necessary because the child's present environment presents a serious question concerning the child's physical health or welfare; or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. (b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so.
Sec. 153.431. Grandparental Appointment as Managing Conservators. If the parents are deceased, the grandparents may be considered for appointment as managing conservators, but consideration does not alter or diminish the discretionary power of the court.
A parent is presumed fit to be appointed as the conservator of a child. Only if those parents are extremely unfit or deceased will the court allow a grandparent to become a managing conservator. Conservatorship is different from visitation in that it deals with the rights and duties a parent has with respect to a child including, the right to determine residency, the right to make medical decisions for the child, the right to make decisions concerning the child's education, etc. It is extremely rare for a grandparent to obtain conservatorship of a child rather than the child's parent. It is much more common for a grandparent to file a suit for visitation with a child.
Sec. 153.432. Suit for Access. (a) A biological or adoptive grandparent may request access to a grandchild by filing: (1) an original suit; or (2) a suit for modification as provided by Chapter 156 of the Family Code. (b) A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
A grandparent may file an original suit for visitation with a child. However, visitation with the grandchild is not guaranteed. Section 153.433 of the Texas Family Code sets out the circumstances under which grandparents may have court-ordered visitation with their grandchildren. Such a suit for visitation arises when an existing family unit is somehow fractured. Under these circumstances, the court is under a mandatory duty to order grandparent visitation. It is important to note the two threshold requirements for a court to order grandparent visitation: 1) both parents have not had their parental rights terminated, and 2) visitation is in the best interest of the child. Once those thresholds are met, then a court must grant visitation so long as it finds one of several enumerated conditions are met. The law does not set out any guidelines for determining the parameters of the visitation the court should order. The terms of the visitation are up to the discretion of the court so long as such visitation is in the best interest of the child.
Sec. 153.433. Possession of and Access to Grandchild. The court shall order reasonable access to a grandchild by a grandparent if: (1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated; and (2) access is in the best interest of the child, and at least one of the following facts is present: (A) the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition or has been found by a court to be incompetent or is dead; (B) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents' marriage is pending; (C) the child has been abused or neglected by a parent of the child; (D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3; (E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or (F) the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition. It should be noted that denial of visitation is not a ground for a grandparent to request visitation to a grandchild. If a family unit is intact, a court may not intrude on that relationship. Finally, the Texas grandparent law sets out other limitations on the right of a grandparent to request visitation with a child. Once a child is adopted by a person other than the child's stepparent and both parents have died, had their rights terminated or executed affidavits of waiver of interest in a child, then a grandparent may not request visitation to the child.
Sec. 153.434. Limitation on Right to Request Access. A biological or adoptive grandparent may not request possession of or access to a grandchild if: (1) each of the biological parents of the grandchild has: (A) died; (B) had the person's parental rights terminated; or (C) executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child; and (2) the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent.
Troxel v. Granville
"...a reading of the Troxel decision brings one inevitable conclusion for the Texas grandparent law: it is unconstitutional in its present form."
As noted hereinabove, the United States Supreme Court's decision in Troxel v. Granville handed down on June 5, 2000, has changed the entire landscape upon which grandparent visitation laws reside. The much anticipated decision will have a dramatic effect on the constitutionality of all such grandparent visitation laws and will undoubtedly generate litigation to determine whether a particular state law passes constitutional muster. The Supreme Court refused to directly rule on the constitutionality of all grandparent visitation laws. However, a reading of the Troxel decision brings one inevitable conclusion for the Texas grandparent law: it is unconstitutional in its present form.
Facts of the Troxel case
Jennifer and Gary Troxel, the grandparents of Isabelle and Natalie Troxel, petitioned the Washington court for visitation after their son Brad Troxel died in 1993. Tommie Granville, the mother of Isabelle and Natalie, was never married to Brad Troxel. Granville, who initially allowed liberal visitation to the Troxels after Brad's death, eventually opposed the Troxels' visitation and wished to limit their visitation to one short visit per month. At trial, the grandparent Troxels requested two weekends of overnight visitation per month and two weeks of visitation each summer. The Washington trial court entered a visitation decree that allowed the grandparent Troxels visitation with Isabelle and Natalie for one weekend per month and one week during the summer. Granville appealed. During the pendency of her appeal, she married Kelly Wynn. Wynn eventually formally adopted Isabelle and Natalie.
Justice Sandra Day O'Connor's opinion
Justice Sandra Day O'Connor delivered the majority opinion of the court, joined by Chief Justice William Rehnquist, Justice Ruth Bader Ginsberg, and Justice Steven Breyer. Justices David Souter and Clarence Thomas concurred in the result. Justices John Paul Stevens, Antonin Scalia and Anthony Kennedy dissented.
The Washington law at issue permitted "any person to petition a court for visitation rights at any time" and authorized such court to grant visitation rights whenever "visitation may serve the best interest of the child." The law was glaringly broad. In effect, it permitted any person to petition a court for visitation with a child. It was not limited to grandparents. The Washington law was also not limited to visitation after the occurrence of a specific event. Visitation could take place at any time so long as a court found it was in the best interests of a child.
The Washington Supreme Court held that parents have the right to limit visitation of their children with third persons and that the parents should be the ones to choose whether to expose their children to certain people or ideas. The Washington Supreme Court held the state law unconstitutional because it did not require a showing that visitation should be required to prevent harm or potential harm to the child. It further held that the law was overbroad.
"Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties"
Justice O'Connor's opinion began by noting: "The demographic changes of the past century make it difficult to speak of an average American family. In 1996, children living with only one parent accounted for 28 percent of all children under age 18 in the United States. Understandably, in these single parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children or 5.6 percent of all children under age 18 lived in the household of their grandparents. Because grandparents and other relatives undertake duties of a parental nature in many households, states have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The extension of statutory rights in this area to persons other than a child's parents, however, comes with an obvious cost. For example, the State's recognition of an independent third party interest in a child can place a substantial burden on the traditional parent child relationship."
The Court's majority opinion held the Washington state law unconstitutional for several reasons. It relied on the substantive due process portion of the Fourteenth Amendment of the United State Constitution. The high court noted that the "liberty interest at issue in this case - the interest of parents in the care, custody, and control of their children - is perhaps the oldest of the fundamental liberty interests recognized by this Court...It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." The court held the language of the Washington law "effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation to the parent's children to a state court review. Once the visitation petition has been filed in a court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference. [The law] contains no requirement that a court accord the parent's decision any presumption of validity or weight whatsoever...Should the judge disagree with the parent's estimation of the child's best interests, the judge's view necessarily prevails. Thus, in practical effect, a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interests."
Additionally, the court found that it was not alleged, and the Washington trial court did not find, that Granville was an unfit parent. This aspect was very important in the court's decision. The court noted that "the problem here is not that the [court] intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests." The opinion reasoned that "the [trial court] judge's comments suggest that he presumed the grandparents' request should be granted unless the children would be impacted adversely". The majority held that the decisional framework employed by the judge directly contravened the presumption that a fit parent will act in the best interest of her child. Justice O'Connor also noted that there was no allegation that Granville ever sought to cut off visitation entirely and that the trial court gave no weight to the fact that Granville assented to some visitation.
The Supreme Court's opinion noted that many state grandparent laws expressly provide that a court may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party. Justice O'Connor explained: "As we have explained, the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made." Because the majority opinion rested on the Washington law's sweeping breadth and application, the court expressly declined to rule on whether the Due Process Clause requires all nonparental visitation laws to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. The court also expressly refused to define the scope of parental due process rights in the visitation context. So, one is forced to read between the lines of the Troxel opnion for guidance on the constitutionality of grandparent laws.
Justice David Souter: "[For the court to uphold the Washington law] it would be anomalous, then, to subject a parent to any individual judge's choice of a child's associates from out of the general population merely because the judge might think himself more enlightened than the child's parent."
Justice Souter concurred in the result of Troxel. He stated: "The strength of a parent's interest in controlling a child's associates is as obvious as the influence of personal associations on the development of the child's social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choice about a child's social companions is not essentially different from the designation of the adults who influence the child in school. Even a State's considered judgment about the preferable political and religious character of schoolteachers is not entitled to prevail over a parent's choice of private school...[For the court to uphold the Washington law] it would be anomalous, then, to subject a parent to any individual judge's choice of a child's associates from out of the general population merely because the judge might think himself more enlightened than the child's parent."
Justice John Paul Stevens: "Even a fit parent is capable of treating a child like a mere possession"
Justice Stevens issued a strong dissent. He reasoned "The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent's interest is paramount. But even a fit parent is capable of treating a child like a mere possession." Stevens also indicated that a parent's rights with respect to their children have never been regarded as absolute, but limited by the existence of actual, developed relationships with the child, and are tied to the presence or absence of some embodiment of family. Justice Stevens further pointed out that while parents have rights, children also have rights, and their interest must be balanced in the equation. Stevens stated: "The constitutional protection against arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child...we should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a person other than a parent. The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent's liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily."
Justice Anthony Kennedy: "Cases are sure to arise - perhaps a substantial number of cases in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto."
Justice Kennedy also dissented. He reasoned that: "My principal concern is that [Justice O'Connor's] holding seems to proceed from the assumption that the parent or parents who resist visitation have always been the child's primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child. That idea, in turn, appears influenced by the concept that the conventional nuclear family ought to establish the visitation standard for every domestic relations case...Cases are sure to arise - perhaps a substantial number of cases in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto." Justice Kennedy further noted that many states, unlike Washington, limit the persons who may file suit a suit for visitation to grandparents or to a person who can demonstrate a substantial relationship with the child. Kennedy thought that the 50 states were better situated to confront the issues that arise in child custody disputes and that a Constitutional ruling was unnecessary.
The Future of Grandparents Rights
It appears inevitable that the Texas grandparent law will be amended by the state legislature in the year 2001. Some possible changes to the Texas law are the following: