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Grandparents - Do They Still Count?
Most of us will agree that grandparents, aunts, uncles and other extended family members play an important role in a child's life. Not to mention the fact that they often lend much needed assistance to today's busy parents. No doubt, the attachments that form between children and extended family can last a lifetime.
In certain instances, an extended family member may believe it appropriate to take legal action to obtain either conservatorship of, or access to, a child. These cases pose difficult questions for family law judges and require the skilled advocacy of an experienced family law attorney.
Any discussion of such cases must begin with the fundamental legal presumption that a parent, not extended family, should raise his or her own child. This presumption holds true unless it can be shown that allowing either parent to have Managing Conservatorship of the child would, "significantly impair the child's physical health or emotional development."
In our years of practice, we have had many grandparents come to us for help when it appears to them that their grandchildren's needs are not being met by either parent. In theses cases, grandparents are telling us they believe the situation in the home is so bad that the child should be removed from the parent's care and that they should become the Managing Conservators of the child.
In advising grandparents in such cases, we are guided by the legal standard established by Texas Family Code §102.004 "Standing for Grandparent" which states:
…A grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
We listen to grandparents to obtain a detailed factual history of the child's life and the circumstances that raise a "serious question" concerning the child. Additionally, we ask our grandparent clients to provide us a list of witnesses who have independent knowledge regarding the child and his or her care. Neighbors, friends, teachers and coaches, just to name a few, are valuable sources of information. We then give grandparents our candid assessment of their chances of prevailing in court.
Examples of situations that can lead a grandparent to seek managing conservatorship of a grandchild are those involving issues of a parent's chronic drug usage, mental illness, unstable living situation, chronic neglect, physical abuse, or exposure of the child to others who have physically abused the child.
If we proceed with the case, we recommend that the grandparents seek "emergency orders" permitting them to take, and retain physical possession of the child until a full hearing is held within two weeks. In order to obtain such emergency orders, the court will require that the grandparents prepare a sworn affidavit providing facts as to why the child is in immediate danger if allowed to remain in his or her current environment. If necessary, the court may enter orders authorizing a law officer to attach the child and place the child in the care of the grandparent.
The emergency orders remain in effect for fourteen days. Prior to the expiration of fourteen days, the court will schedule an evidentiary hearing to consider whether temporary orders should be entered for the safety and protection of the child. Although a parent need not be notified of an application for emergency orders, a parent is entitled to notice of, and the right to be heard at, a hearing on temporary orders. Temporary orders can remain in effect for the duration of the case, that is, until a final order is entered.
The outcome of a grandparent managing conservatorship case depends largely upon the parent or parents of the child. The critical question is: will the parent make the changes necessary in his or her life to provide the child with a safe and loving home?
While the preceding has focused on the rights of grandparents to seek managing conservatorship, it is important to note that, in some instances, other extended family may also have the right to seek conservatorship. The additional prerequisite for these relatives is that they must have had, "actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition."
This scenario often arises when a troubled parent "drops-off" the child with a relative and then fails to return. Finally, a relative may seek managing conservatorship of a child if the child's parents are both deceased.
We should also mention that, many times, a parent is aware of his or her problems and understands that the child needs to be in the care of someone else. In these situations, we are able to assist our clients in preparing the appropriate conservatorship documents and obtaining their entry by the court.
The Family Code also provides that, "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... ."
In short, the law prohibits extended family from initiating a suit for possessory conservatorship, but if a suit affecting the parent-child relationship is already pending, the court, in its discretion, may allow other family members to intervene in the suit. Again, such attempts to intervene will be closely reviewed by the court. The court's decision to allow other family members into the suit will depend on a number of factors including the nature of the suit and the strength of the relationship between the family member and the child.
This issue has been the topic of considerable debate during the past few years. While a scholarly dissertation on the subject is not necessary here, it is possible to briefly explain the current status of grandparent access in Texas.
In one of its rare ventures into family law, the United States Supreme Court in Troxel v. Granville, declared the Washington State grandparent access statute to be unconstitutional. The Court found the statute unconstitutional because it allowed a judge to award grandparent access without taking into consideration the wishes of a fit parent. In short, the Supreme Court found that a fit parent has a fundamental right to make decisions for his or her child. Accordingly, unless the parent is "unfit" he or she will have the right to decide if and when the child has contact with a grandparent.
The constitutionality of the Texas Grandparent Access Statute has not yet been reviewed by the Texas Supreme Court. There is a real concern that the Texas statute does not incorporate the "fit parent" standard articulated in Troxel and is therefore unconstitutional.
Texas courts have already become increasingly cautious in granting access to grandparents in the three years since the Supreme Court's ruling in Troxel. For instance, one court has ruled that "access" merely means the right to visit or communicate with the child, but not the right to take possession as would be the case with an overnight visit. Another court has held that the burden is on the grandparent to overcome the presumption that a fit parent acts in the best interest of the child in denying grandparent access.
To conclude, grandparents seeking court-ordered access must obtain the guidance and advice of an experienced family law attorney before deciding to proceed in court.
Before the divorce is final, the court may issue temporary orders to deal with immediate problems, such as conservatorship, possession, child support, and spousal support/alimony. Temporary orders can say who will live in the home, who will be able to write checks on the bank accounts, and who will have control of the children up until the divorce is final and permanent orders are put in place. In most cases, depending on the court, the spouses will be ordered to mediation prior to any hearing on temporary orders. Mandatory mediation helps lessen the case load at the court and helps the parties resolve issues without a court ruling.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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