Texas Divorce Attorney Blog
In a recent Texas appellate case, paternal grandparents wanted the court to order a mother to give them access to their grandchild. The case arose after a couple married in 2004 and had two children in the subsequent years. The father died, and at the time of his death, the kids were three and two years old.
Before the father died, his parents had regular visits with the kids. The paternal grandmother cared for one of the kids for 15 months, while the mother prepared for a teaching career. The two kids started daycare after the second was born, but the grandparents transported them to activities. During the week, the grandparents had dinner with the parents and the older child. After the second child was born, the grandmother made them dinner, including special foods due to the older child’s food allergy.
After the father died, the grandparents and the mother had a conflict. The mother testified she thought the house where the father and kids lived was a gift. She learned after the father’s death that a deed of trust securing a note that the grandmother held encumbered the house. There may have been a disagreement about who owned a vehicle. The grandparents sued the mother in connection with the property disputes, but the kids had continued having visits after the father’s death until the holidays of 2012. The grandmother later testified that after they gave each other Christmas gifts, the mother told the grandparents they wouldn’t see their grandchildren again. The mother denied this.
The parties agreed that the last purposeful visit was a few months after Christmas. There were a few unplanned encounters after that, but the grandparents testified that the mother kept the kids from seeing them and that the kids looked distraught on one of the occasions. In court, they provided testimony from a counselor, who testified that children who are denied grandparent access may face emotional and developmental problems. She hadn’t actually interviewed the two children in this case and provided no opinion about them for that reason.
The grandparents also called upon the mother and her new husband as part of their case. The new husband hadn’t witnessed any problems with the kids and didn’t know of the children asking about their grandparents. The mother testified that the kids had a significant relationship before the father died, but they had no adverse effects from not having contact. She did think that being in two lawsuits with the grandparents dampened her interactions with them and affected her desire to allow them to visit with her kids.
In her case, the mother presented testimony from the former director of her children’s daycare. She’d testified that the children handled their father’s death better than would be expected. None of the kids’ caregivers had brought a problem to her attention. Similarly, an administrator from an afterschool program the kids later attended testified that the kids were really good.
The court ruled that there was a possibility of negative effects from not having access to their grandparents, but the preponderance of the evidence didn’t show that it would significantly affect the children’s well-being, so it denied the grandparents’ petition.
On appeal, the grandparents argued that they’d conclusively rebutted the presumption that a fit parent acts in her child’s best interests, and they also argued that the finding that they failed to rebut the presumption was contrary to the overwhelming weight of the evidence.
The appellate court explained that under Texas Family Code section 153.433(a)(2), there is a presumption that a parent acts in a child’s best interests, and a grandparent can only get access by court order to a grandchild by showing that the denial of access will significantly affect the child’s well-being or health. In this case, the record supported the trial court’s finding that the children wouldn’t be significantly impaired by not seeing their grandparents.
The record showed that the kids were doing well despite the death of their father and without contact with the grandparents. The grandparents had presented the case that they’d had a lot of significant contact with the kids before, but nothing showed that the kids’ reactions during three unexpected encounters were caused by emotional impairment.
For these and other reasons, the lower court’s judgment was affirmed.
If your divorce involves matters related to child custody, parental rights, or grandparents’ rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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