Texas Law Governing Grandparent Custody & Access To Grandchildren
John Wilson • Apr 28, 2020
Constitutional Challenges to Grandparent Access
Texas Family Code §153.432 provides the authority for grandparents to maintain the standing necessary to file a suit to request access and visitation of their grandchild. The Texas Family Code further states that a grandparent “may request access to a grandchild by filing . . . an original 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.” TEX. FAM. C. §153.432 (emphasis added). This statute can give a grandparent standing to file their suit with a Court, and also gives a Court jurisdiction to hear their case and make a decision on whether to grant them reasonable visitation under Texas Family Code §153.433 (§153.433).
Constitutional Challenges To Grandparent Access
Texas Courts have historically rejected constitutional challenges to grandparent access statutes and allowed grandparents to have reasonable visitation with their grandchildren, regardless of the wishes of a parent, when the Court determined that the visitation was in the best interest of the child. See Dolman v. Dolman, 586 S.W.2d 606, 608 (Tex. Civ. App.–Austin 1979, writ dism’d w.o.j.); Deweese v. Crawford, 520 S.W.2d 522, 526 (Tex.Civ.App.–Houston [14th Dist.] 1975, writ ref’d n.r.e.) However, the United States Supreme Court’s decision in Troxel v. Granville has caused great debate as to whether Texas Family Code §153.433 (§153.433), which allows court’s the authority to order grandparent access, is constitutional. Troxel v. Granville, 530 U.S. 57 (2000). Fortunately, Texas courts have, thus far, maintained that §153.433 is not “facially” unconstitutional and have allowed grandparent access in many cases despite the ruling in Troxel.
Two Ways To Challenge The Constitutionality Of A Statute
There are two ways in which a statute may be constitutionally challenged. A statute may be challenged that it is “facially invalid“ or that it is unconstitutional “as applied.” See Appraisal Review Bd. of Galveston County v. Tex-Air Helicopters, Inc., 970 S.W.2d 530, 534 (Tex. 1998); Texas Workers Compensation Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). A statute is “facially invalid” if it could not be constitutional under any circumstances. See Tex-Air Helicopters, Inc., 970 S.W.2d at 534. Conversely, a statute that is “otherwise constitutional may be declared unconstitutional . . . as applied to particular persons, circumstances or subject matter.” 12A TEX. JUR. 3d Constitutional Law § 38 (1993) (emphasis added). In Troxel, the U.S. Supreme Court held that a very broad Washington statute, which allowed the courts to order visitation for any person at any time if the court found that the visitation was in the best interest of the child, was unconstitutional “as applied” to the facts of the case. Troxel, 530 U.S. at 67-68. The Troxel court did not find that all grandparent access statutes were unconstitutional. Consequently, a party wishing to challenge the constitutionality of a state’s grandparent access statute must do so in the courts of that state.
Under Texas law, all statutes are presumed to be constitutional and it is the burden of the party challenging the constitutionality of a statute to rebut this presumption. See General Services Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). This presumption of constitutionality is very difficult to overcome, especially in light of the fact that Texas courts must not hold a statute unconstitutional unless “it is absolutely necessary to so hold.” Texas State Bd. of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731 (Tex. 1970). “Before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.” Ex Parte Austin Indep. Sch. Dist., 23 S.W.3d 596, 599 (Tex.App.– Austin 2000, no pet.).
Texas Statute For Grandparent Access
Unlike the statute in Troxel, the Texas statute granting grandparent access is specific in that it only allows grandparents to gain access to children and, then, only under certain circumstances. See TEX. FAM. C. §153.433. Under § 153.433 “[t]he court shall order reasonable access to a grandchild by a grandparent if . . . access is in the best interest of the child, and . . . 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) 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.” TEX. FAM. C. §153.432 (emphasis added). Because the Troxel Court merely found that the Washington statute was unconstitutional “as applied” and because of the specificity of §153.433, no Texas court has found §153.433 to be facially unconstitutional. See In Re C.P.J., 2003 WL at 3. Therefore, it is only reasonable to challenge the constitutionality of §153.433 “as applied” to the specific circumstances of each case.
In another case, In Re C.P.J., the Dallas Court of Appeals held that the trial court’s order granting grandparent visitation under §153.433 did not violate the constitutional rights of the parent. The grandparents in that case were awarded court ordered visitation with their grandchildren after the children’s mother, who was the grandparent’s daughter, died of Leukemia. The father of the children testified to the trial court that he was not refusing visitation, but simply did not want court ordered visitation because he wanted to make decisions on visitation that would be flexible with the children’s schedules. However, there was also testimony that the father continuously denies the grandparents visitation with the children, was rude to the grandparents and occasionally refused to speak with them. The trial court’s order took the father’s scheduling conflicts into consideration and ordered visitation around any conflicts. The Dallas Court of Appeals held that the trial court crafted it’s decision with “at least some special weight to the parent’s own determination” as required in Troxel and that the father’s constitutional rights had not been violated with the court’s order.
Texas Grandparent Custody & Access Rights
Texas does provide a constitutional and legal right for grandparents to see their grandchildren, and a court can enforce a grandparents right to visit a child in certain situations. Our Dallas Family Lawyers can assist you in seeking and enforcing your grandparent access rights. If you’re wondering what rights you might have as a grandparent, please see our Grandparent Access
web-page or call us today at 972-248-8080.
Interview of a Child in Chambers by a Texas Court Divorces can be messy; even more so when children are involved. One pivotal question that is often asked is who will receive primary custody. The prospect of children speaking to a judge during a divorce case to help determine custody can be a controversial topic. On one hand, it aims to understand and prioritize the child's preferences and best interests. On the other hand, exposing children to legal proceedings can be emotionally taxing and stressful . When Can the Judge Talk to Children? During a nonjury trial or hearing, the court is required to privately interview any child 12 years or older, while interviewing a child under 12 is at the judge's discretion. This private interview helps convey the child's wishes regarding who should have primary custody. The judge can also conduct the interview independently or on the request of a party, amicus attorney, or attorney ad litem. While speaking to the child can help determine issues of possession, access, and parent-child relationships, it does not restrict the court’s authority to decide what’s best for them. However, in cases where a jury trial is underway, the judge is prohibited from privately interviewing the child on matters subject to a jury verdict such as which parent is granted conservatorship/primary custody. During the conversations, attorneys representing the parents, the amicus attorney, the guardian ad litem, or the child's attorney ad litem may be present. For children aged 12 and older, the court is required to record these interviews to ensure a thorough and accurate record is available as part of the overall case documentation. Inside the Judge's Playbook: What Gets Asked? The judge may ask open-ended questions about living arrangements, the child's relationship with each parent, and other aspects relevant to their well-being. Additionally, an interviewer’s nonverbal communication may not contribute to the making of a particular statement. James v. Texas DHS, 836 S.W.2d 236, 239-241, (Tex.App.—Texarkana 1992, no writ.). However, the child's testimony is just one piece of the puzzle, weighed alongside other factors such as parental behavior, home stability, and each parent's willingness to cultivate the child's relationship with the other parent. Importantly, if the judge during the interview has reasonable cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person , the the judge is obligated to shall immediately make a report. Tex. Fam. Code §261.101(a).
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