HAVE TEXAS GRANDPARENTS CAUGHT A BREAK? | Hammerle ...

For the past ten years Texas law has not been favorable for grandparents who are not able to see their grandchildren.
Family rifts can happen for a number of reasons. When an adult child?s marriage ends because of death or divorce, the opportunity to visit with the grandchildren may be reduced or taken away completely. It can happen when a parent?s rights are terminated and when child is adopted and acquires new grandparents. In order for a grandparent to obtain visitation with their grandchildren in Texas when a parent won?t allow it, the grandparent basically has to show that the parent is ?unfit.?
All this started with a U.S. Supreme Court case in 2000 that held that a parent has a fundamental right to decide who has access to a child. Under this ruling, a parent who is ?fit? is presumed to make decisions, including the decision to keep a grandparent from contacting a child, in a way that serves the best interest of the child. As with other presumptions, this one can be rebutted or overcome with competent evidence. The grandparent however has the burden to overcome this presumption with sufficient evidence.
After this case, the Texas legislature and courts struggled with this question of grandparent rights. This struggle is evident ? the Texas Family Code has been amended twice; once in 2005 and again in 2009. For cases file after September 1, 2009, a grandparent has to show the court that denial of possession of or access to the child by the grandparent would significantly impair the child?s physical health or emotional well being. If the grandparent can?t show this by an affidavit supported by sufficient facts, the court is required to deny the relief and dismiss the suit.
Help may be on the way in the Texas courts. In November, 2010 the Texas Supreme Court held that a grandfather who had failed to show that depriving him of access to and possession of his grandchildren would significantly impair the physical health or emotional well being of the grandchildren was entitled to the appointment of a psychologist to assist the court in making that determination. This decision appears to open the door to allow grandparents to pursue discovery of other evidence in these cases to help them in meeting their burden of proof to obtain court-ordered access and possession.
Denton and Collin County courts have been open to review of grandparent rights. In the right set of circumstances ? and with a little luck ? Texas grandparents should be able to see their beloved grandchildren again.
Call Hammerle Finley Law Firm if you have a case involving grandparent access or grandparent rights.

Source: http://www.hammerle.com/have-texas-grandparents-caught-a-break/

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