In Texas, grandparents have a limited ability to seek court-ordered access and possession of their grandchildren. Grandparents who are considering filing a lawsuit to obtain possession and access need to understand the requirements, which are found in the family code.
Texas family code section 153.433-
This section allows a court to order reasonable possession of or 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;
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional wellbeing;
and (3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
(B) has been found by a court to be incompetent;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child. TEX. FAM. CODE ANN. § 153.433(a).
Proof of Significant Impairment to the Child Required- In re Derzapf, 219 S.W.3d 327
Let’s talk about significant impairment and what that means for grandparent access. The first thing to know is that the burden of proof, and what you must prove. Here’s a quote from the Derzapf case.
“The Legislature set a high threshold for a grandparent to overcome the presumption that a fit parent acts in his children’s best interest: the grandparent must prove [by a preponderance of the evidence] that denial of access would ‘significantly impair’ the children’s physical health or emotional well-being.” Derzapf, 219 S.W.3d at 334 (citing TEX. FAM. CODE ANN. § 153.433(a)(2).
A “preponderance of the evidence” means 51% of the evidence believed by the fact finder. So the judge has to agree that 51% of the credible evidence shows significant impairment to the child if the grandparents are denied access.
If you don’t show significant impairment by 51% (preponderance) then the court order for grandparent visitation and access can be overturned on appeal.
A trial court abuses its discretion if it grants access to grandchildren when the grandparent has not proven that denying the grandparent access to the child would significantly impair the child’s physical health or emotional well-being. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam) (quoting Derzapf, 219 S.W.3d at 333).
What happened in the Derzpaft case?
The maternal grandmother filed a suit for possession and access of the grandchildren. The children’s mother had died of leukemia. At trial, the children’s psychologist testified that the children were suffering from depression and grief over the loss of their mother, but that this did not rise “to a level of significant emotional impairment.” Id. The maternal grandmother ultimately lost on appeal to the Texas Supreme Court because the evidence did not show “that denial of access would ‘significantly impair’ the children’s physical health or emotional well-being”. Id.
If you are a grandparent considering filing suit for possession and access to your grandchildren call Guest and Gray today. We offer free consultations for family law, including child custody.