Sandra Reed’s Life Care Planning: Grands have rights, too — but they aren’t absolute

Attorney Sandra W. Reed answers your life planning questions.

Attorney Sandra W. Reed answers your life planning questions.

Every time I sign in to Facebook and scroll through my newsfeed, I am struck by how many of my FB friends are posting pictures of their grandchildren. No wonder, though, considering the importance grandparents can be to children’s lives.

I was one of the lucky ones growing up. My grandparents on both sides lived on the same street within walking distance. They were constantly available to me and I went very few days without spending time with them. Bonding with them developed into one of my strongest positive lifelong influences, lasting to this day, though they have been dead for decades.

Today’s grandchildren are often not so fortunate. Frequently, families are scattered with the elder generation living hundreds, even thousands of miles away from their child-bearing offspring. For these families, Facebook, Twitter, smartphones, Skype and similar high-tech avenues can be essential to involvement in their grandbabies’ lives.

The majority of parents are more than happy to share their children with their own parents. But that is not always the case.

When parents and their grown-up children have strained relationships, grandparents may find themselves blocked from seeing these little ones, missing moments they deem precious and forever lost. When parents deny grandparents access to grandchildren, the road to obtaining visitation rights is more akin to a bumpy dirt road than a smooth interstate highway.

Limitations on Grandparents’ Rights

The U.S. Supreme Court case, Troxel v Granville, found that parents have a fundamental right to make decisions concerning the care, custody and control of their children, based upon the Due Process Clause of the U.S. Constitution. Conversely, grandparents have no constitutional right to even see their grandchildren, much less control them.

When Can Grandparents Seek and Obtain Visitation?

Troxel’s establishment that visitation rights to grandparents are not absolute does not prevent states from providing limited types of visitation rights, which grandparents can seek through the courts. And almost every states does so.

In Texas, except for those whose grandchild has been adopted by someone other than a step-parent, grandparents can file a suit for visitation of a grandchild under these conditions: (1) if the parents are divorced; (2) the parent has abused or neglected the child; (3) the parent has been incarcerated, found incompetent or has died; (4) a court has terminated the parent-child relationship; or (5) the child has lived with the grandparent at least six months. The court is authorized to grant visitation to the grandparent if doing so is found to be “in the best interest of the child.”

Grandparents seeking access must show in court that the denial of that access is physically or emotionally harmful to the child, no easy hurdle. Sometimes the court can be persuaded visitation with the grandparent is in the child’s best interest because the child and grandparent had previously forged a strong bond.

If the reason that grandparents are being isolated is that parents and grandparents don’t get along, the best solution is to work out the differences. The time spent with grandchildren is too precious to squander through disagreements, whether petty or more serious.

When Can Grandparents Obtain Custody of a Grandchild?

A parent can sign a power of attorney giving a grandparent the power to determine decisions of care and custody of the child. It is not uncommon for grandparents, through this type power of attorney, to take grandchildren to live in their home. Schools will generally recognize the power of attorney to allow the grandparents to enroll the child.

If a grandparent believes a child is being abused or abandoned, the grandparent may wish to seek full custody of the grandchild instead of merely seeking visitation rights.  Absent a power of attorney, grandparents must go to court to gain custodial rights.  The burden of proving that the grandparents ought to have custody is great. The grandparent must show that the child is being harmed by the people caring for the child or by the conditions in which the child is living.

Even if custody is awarded to the grandparents, both of the parents continue to have the legal responsibility to provide financial support and medical care for their children. This means that grandparents who obtain custody are entitled to be paid child support.

What Factors Does the Court Consider in Determining Custody?

The overriding determination is what is “in the best interest of the child.” This conclusion is made by applying a complex set of factors. Among those considered are (1) whether the child is in danger; (2) the acts of the parents that have harmed the child and whether the parents are able to show facts that excuse or remove the harm; (3) the child’s needs, emotionally and physically; (4) an assessment of the grandparents’ ability to raise the child; (5) the stability and safety of the home; (6) whether public benefits are available; and (7) what the child wants.

What If a Grandparent Believes a Grandchild is in Imminent Danger?

A grandparent who believes his or her grandchild is in imminent danger should immediately contact 911. In addition, it is the duty of the grandparent, as well as anyone else who suspects child abuse, to report it to Child Protective Services.

Where Can Grandparents Go for Information and Help?

Grandparents seeking information and help can go to an organization called Texas Law Help. Its website is at www.texaslawhelp.orgIn addition, grandparents can access an attorney’s advice through the legal hotline for Texans by calling 800-622-2520. The advice is free to those 60 or over or for anyone who is eligible for Medicare.

Sandra W. Reed is an attorney practicing in Glen Rose.  She is of counsel with the elder law firm of Katten & Benson in Fort Worth. If you have any questions, you may contact her by phone at 254-797-0211 or by email at swreed2@yahoo.com.

 

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