Chapter 2-5 Grandparents' Rights

• Jurisdiction: United States

2-5 Grandparents' Rights

Most elderly people have one thing in common other than age: They are grandparents. For them, the issue of grandparents' rights rises to the fore after one or more of their children get a divorce. Sometimes their children, and at other times their former children-in-law, forbid them from having relationships with their grandchildren. What recourse do they have under the law?

In a sense, the law offers little comfort to these grandparents. In a 2000 ruling, the U.S. Supreme Court held that "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."⁷² Citing to precedence established in cases such as Meyer v. Nebraska,⁷³ Pierce v. Society of Sisters,⁷⁴ and Prince v. Massachusetts,⁷⁵ Justice O'Connor, writing for the Court, stated that it cannot be doubted that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. The Supreme Court has spoken clearly: The parent-child relationship cannot be interfered with lightly, not even by a grandparent.

In Texas, what little hope grandparents have lies with the divorce judge. In a divorce, the judge decides who gets custody and visitation of the children. Increasingly, Texas courts have been naming both parents as joint managing conservators, letting the parents work out a pattern for sharing the children.

If the elderly grandparent's child has adequate time and is willing to share the grandchildren with him or her, then his or her need to spend time with the grandchildren would be satisfied. However, if the grandparent fears that neither parent will allow him or her access to the grandchildren, the Texas Family Code allows grandparents to petition a court of competent jurisdiction for "reasonable access" to the grandchildren.⁷⁶ The grandparent would have to show the court that:

1. at the time relief is being requested, at least one of the child's parents or adoptive parents has not had his or her parental rights terminated;
2. his or her child is still the parent or adoptive parent of the grandchild or grandchildren in question (the statute's relief does not extend to stepchildren), and that parent or adoptive parent is incarcerated, is dead, has been found by a court to be an incompetent parent, or somehow does not have actual or court-ordered possession of the child; and
3. denial of access would

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