Grandparental Visits: Access and Possession Suits
The Texas Family Code permits a biological or adoptive grandparent the right to request possession of or access to a grandchild by filing an original lawsuit or modification suit. The suit may request solely the issue of access and possession, regardless of whether the appointment of a managing conservator is at issue.
The Texas Legislature's 2009 amendments require that a grandparent seeking visitation rights must file an affidavit containing, along with supporting facts, the allegation that denial of possession of or access to their grandchildren would significantly impair the child's physical health or emotional well-being. The trial court is then required to deny and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the request for relief.
The Relief Sought
The 2009 Legislative session changed section 153.433 from a mandatory provision to a discretionary provision; thus, now a trial court may award possession of and access to grandchildren upon a showing that at the time the relief was requested the following were proven:
- at least one biological or adoptive parent of the child has not had their parental rights terminated;
- the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of their child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and
- the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
- has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
- has been found by a court to be incompetent;
- is dead; or
- does not have actual or court-ordered possession of or access to the child.
Limitations on Right to Request Visits
If any of the following have occurred, a biological or adoptive grandparent may not request visitation rights to their grandchildren under sections 153.432-153.433:
- each of the biological parents of the grandchildren has:
- had the person's parental rights terminated; or
- executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Chapter 161 and the affidavit designates someone else other than a stepparent as the managing conservator of the child; and
- the grandchildren have been adopted or are subject of a pending suit for adoption by a person other than the children's stepparent.