Texas Divorce Attorney Blog
The U.S. Supreme Court held in Troxel v. Granville that parents have a fundamental right to make decisions regarding the care custody and control of their children. There is a presumption under Texas family law that being raised by their biological parents is in a child’s best interest. Additionally, Texas law presumes that a fit parent acts in their child’s best interest. Essentially, it is presumed that a fit parent should decide whether a grandparent should have visitation with the child. In addition to other requirements, a grandparent seeking possession or access to a grandchild under Tex. Fam. Code § 153.433(a) must overcome that presumption by showing by a preponderance of the evidence that denying visitation would significantly impair the child’s health or emotional well-being. Tex. Fam. Code § 153.433(a) applies when the grandparent is the parent of the child’s parent who has been incarcerated for the three month period before the petition is filed, has been found incompetent, is deceased, or does not have possession of or access to the child.
A mother recently challenged a trial court’s order granting the paternal grandparents possession of and access to her children, arguing there was no evidence the children’s physical health or emotional wellbeing would be significantly impaired if it was denied.
Grandparents Petition for Visitation
The children’s father sadly died in December 2020. The appeals court’s opinion described a close relationship between the children and their paternal grandparents before their father’s death. In fact, the parents and one of the children had lived with the grandparents for more than four years and then moved next door.
After the father died, however, the mother’s relationship with the grandmother grew contentious, according to the court’s opinion. They argued frequently, and the father’s sister also started arguing with the mother. The children witnessed arguments and heard negative comments about their mother. One of the children became defensive of her mother when she was with her grandparents and cried when she came home from visiting them.
The mother ultimately decided not to continue contact with the grandparents and aunt. The grandparents then petitioned for possession of and access to the children. The trial court granted the petition and allowed the grandparents access to and possession of the children. The mother appealed.
The Mother’s Appeal
The appeals court noted that courts generally consider parental fitness, the children’s health and emotional well-being, and whether the parent intends to completely exclude access to the grandparents in determining whether to grant grandparents visitation.
The grandparents did not argue the mother was unfit, but instead testified that she was a good mother. The appeals court noted the mother’s denial of any possession of or access to the children by the grandparents was undisputed. The only issue, then, was whether the grandparents had shown that denial had and would continue to significantly impair the children’s health or wellbeing.
To meet this burden, the grandparents must present some evidence showing how the impairment will be significant. This is a high burden and the Texas Supreme Court has held that lingering sadness that does not rise to the level of depression or result in behavioral problems did not meet it.
The appeals court in this case concluded the record was “essentially devoid” of evidence of significant impairment. There was evidence the grandparents and children once had a close relationship. One of the children had lived with the grandparents, along with her parents. After that, the family moved next door and saw their grandparents daily until the mother denied access. The grandparents testified they wanted to keep a close relationship with the children. They talked about the activities they participated in and said they told the children about their father and facilitated their relationship with the father’s side of the family.
They testified one child had wandered off to their house without his mother knowing. They also testified child protective services had become involved due to alleged use of marijuana by the mother when the daughter was born. They did not testify, however, about how the children had been affected by being separated from them. The grandparents had not seen the children for six months and were therefore unaware of their current emotional wellbeing. They argued their evidence supported an inference of significant impairment to the children’s wellbeing.
The appeals court distinguished this case from the case cited by the grandparents, Casas v. Adriano. In that case, the grandparents had acted as primary caretakers and the child called them “mom” and “dad,” neither of which occurred in this case. In fact, one of the children in this case never lived with the grandparents. Finally, the grandparents in Casas testified regarding some negative effects the denial of access had on the children, but the grandparents could not do so in this case.
The mother presented evidence of improved emotional wellbeing, however. She testified the children were very happy and did not appear upset about not being able to spend time with their grandparents. She also testified they frequently spoke positively about their father. Additionally, the daughter was doing well in school. Five other witnesses testified the children seemed happy and seemed to have benefited from the denial of access.
The appeals court also pointed out the evidence of the negative effects the arguments between the mother and the father’s family had on the children. The grandmother testified the girl had been guarded and defended her mother. The mother testified the child sometimes cried after visiting her grandparents and that the mother had the impression the child had been told that the mother did not love the father.
The Appeals Court Reverses the Order
The appeals court concluded the grandparents had not overcome the fit parent presumption. They had not identified specific behavior that would significantly impair the children’s health or wellbeing. The appeals court concluded there was no evidence of significant impairment.
The appeals court reversed the trial court’s order and rendered judgment in favor of the mother.
This case shows how hard it can be for grandparents to obtain access or possession over the objection of a fit parent. The grandparents in this case clearly had a close relationship with the children, but that was insufficient to show denial of access and possession would significantly impair the children’s health or wellbeing. Whether you are a grandparent seeking visitation or a parent wishing to deny access to your children’s grandparents, a knowledgeable Texas custody attorney can advise you of your rights. Call 214.692.8200 to schedule a consultation with McClure Law Group.