Children & the Law Blog

The potential for positive impact of grandparents on their children’s children is well established in literature regarding early childhood development. They are a bridge between the generations providing knowledge of the past and continuity within the family and community. Grandparents often act as rescuers of families in trouble, providing emotional and financial support.

In traditional extended families in which adults are at least amicable, the relationship between children and their grandparents develops with parental support. Where disputes arise over access and visitation rights, the benefits to a child of grandparents in her life must be balanced against the financial and emotional costs of a potentially lengthy court battle.

The demographics of grandparenthood are changing. The percentage of the population who are grandparents is growing. People are becoming grandparents at younger ages and living longer. As a result, more children are growing up with at least two living grandparents and those relationships last longer.

A growing number of grandparents find themselves completely responsible for their grandchildren often because a court determined it was in the children’s best interest to be removed from parental custody. Data from the 2000 census indicate that 4.5 million American children live in homes with grandparents as head-of-household. Almost 10% of those grandparent-dependent children reside in Texas and 244,000 of those have no parent living with them. Of the approximately 250,000 Texas grandparents who report being primary caregivers, 21% do so in poverty.

The potential also exists for grandparents to have a negative impact on the parent/child relationship or the wellbeing of the child. Abuse is one obvious situation. Another might arise when there is such contempt between parent and grandparent that an ongoing relationship would be in conflict with the child’s general welfare and relationship with her parent.

State courts have been examining the question of grandparent visitation for decades. In the early part of the 20th century there were no statutes permitting grandparents to petition for visitation. Courts took four different approaches when deciding questions of grandparent visitation over parental objections.

1. If there was a pending action involving the child, the court may have allowed the grandparents standing to pursue visitation, and in the course of evaluating the particular facts, ordered such visitation.
2. In limited circumstances, courts granted standing and visitation to grandparents even when there was no other matter before the court.
3. Some courts granted standing to grandparents to seek visitation with their grandchildren and then conducted a best interest analysis.
4. Lastly, some courts denied grandparents standing to request visitation outright and never addressed whether or not the visitation was in the child’s best interests.

As state legislatures developed laws to govern these custody decisions, Washington created the most liberal and far-reaching legislation allowing virtually anyone to sue for visitation if they could present evidence of a meaningful relationship with the child. This is the statute under which the Troxels sued to increase visitation with their grandchildren.

When the Troxels’ son divorced, he usually brought the children to the grandparents’ home during his visitations.  Therefore, the children had a preexisting relationship with their paternal grandparents.  When the son died, the grandparent/child relationship continued as before. 

However when the children’s mother remarried, she reduced the visits hoping to encourage blending of the new family.  Although their daughter-in-law never denied them visitation, they feared that this reduction would eventually lead to elimination of visits altogether.

So the Troxels sued and won, Mrs. Granville appealed, and the appeals continued to the Supreme Court which decided for Mrs. Granville. 

The 2007-2008 Texas family code (FAM 153.433-434) allows that the court should order possession or access of a grandparent to a biological or adopted grandchild if at least one of the parents still have legal parenting rights, if the grandparent can prove by a preponderance of evidence that denial would “significantly impair the child’s physical health or emotional well-being.”

Further that the grandparent(s) requesting access is parent of an adult child who is either deceased, declared incompetent, incarcerated within the previous three months, or doesn’t have legal access to the child.

If both parents are deceased or have had their parental rights terminated and the child is subsequently being adopted by someone other than the child’s step-parent, grandparents aren’t granted the right to sue for access.

At least one other state has addressed the issue of grandchild visitation rights since Troxel v Granville. California law provides that a court may grant visitation if it finds that the bond between grandparent and child is such that visitation is in the child’s best interest.

Grandparents have standing to petition for visitation in California if the child’s parents are separated, one parent’s whereabouts are unknown for more than a month, or the child isn’t living with either parent. The refutable presumption is that if the parents (whether natural or adopted) or single parent oppose visitation then it probably isn’t in the child’s best interest.

A big difference between the California and Texas statutes is the extension of mandatory mediation to visitation disputes involving grandparents. Only if mediation is unsuccessful, does the mediator inform the court and a hearing is scheduled.

The first cultural system a child learns to function within is the family – first immediate then extended. They learn that each member plays a role in the family system and certain rules must be followed. The often unspoken rules of families vary greatly depending on ethnicity and culture, size and parenting style, income, class and education status, even geographic location.

The family is a basic building block of society yet also quite complicated and not easily defined by laws or courts. The generational bonds that connect a child to place and culture should not be severed easily.

Grandparents are vital to their grandchildren and the state when stepping in as substitute parents. They are just as important when simply playing the role of grandparents.

Constitutionality of more inclusive legislation will be preserved if resources such as family counseling and mediation are mandated in disputes prior to and hopefully instead of going to court. Doing so should save money for petitioners, parents, and the state.

In cases where mediation fails, parental rights will usually prevail. However, the need for visitation hearings will be reduced if the grownups try to work out among themselves what is in the child’s best interest before filing suit.

References

American Association of Retired Persons (AARP), Texas State Fact Sheet for Grandparents and Other Relatives Raising Children.

Ellen Marrus, Over the Hills and Through the Woods to Grandparents’ House We Go: Or do we, Post-Troxel?, 43 Ariz. L. Rev. 751 (2001). (.pdf)

Senate Jurisprudence Committee Testimony on Current Charges involving Grandparent Visitation Rights, May 23, 2008, (Interim, Charges, Audio of Testimony [requires RealPlayer])

Casper, Lynne M. (2002) Continuity and Continuity in the American Family. Sage Publications, Inc. Thousand Oaks, CA

Family Law Code, Selected States and Ali Principles with Commentary (2008) Wolters Kluwer, Austin, TX

O’Connor’s Family Code Plus (2007-08). Jones McClure Publishing, Houston, Texas