Under certain circumstances, a court may grant a grandparent access to a child without appointing the grandparent a possessory conservator and even if no managing conservator has been appointed. The Family Code authorizes trial courts to issue and enforce orders granting access to a child to a biological or adoptive grandparent in the context of a suit affecting the parent-child relationship, even if the suit was brought for the sole purpose of seeking grandparental access. An access order may also be entered in a proceeding for the modification of a previous order. Moreover, the court may order grandparental access regardless of whether managing conservatorship is an issue in the case.
There is a presumption that a fit parent acts in the best interest of the parent’s child. The decision whether a grandparent-grandchild relationship would be beneficial in any specific case is for the parent to make in the first instance. If a fit parent’s decision becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination in order to protect the parent’s fundamental constitutional right to determine the rearing of the parent’s child. Therefore, a grandparent seeking access under the Texas Family Code has the burden to overcome the presumption that a fit parent acts in the best interest of the parent’s child in order to establish the “best interest of the child” prong of the statute.
The court must issue and enforce orders granting to a biological or adoptive grandparent reasonable access to the child if three prerequisites are met. First, a parent of the child must be, at the time the relief is requested, a biological or adoptive parent of the child. The phrase “at the time the relief is requested” means the time a petition is filed requesting access. Second, access to the grandparent must be in the best interest of the child. Finally, one of the following conditions must exist:
- The grandparent seeking access 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 or has been found by a court to be incompetent or is dead.
- The parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents’ marriage is pending.
- The child has been abused or neglected by one of the child’s parents.
- The child has been adjudicated to be in need of supervision or delinquent under Family Code Title 3.
- The grandparent seeking access is the parent of a person whose parent-child relationship with the child has been terminated by court order.
- The child has lived with the grandparent seeking access for at least six months within the 24-month period preceding the filing of the petition.
An access order is not available to a grandparent if:
- Each of the biological parents of the grandchild 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 and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child’s stepparent as the managing conservator of the child; and
- The grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child’s stepparent.
The statute gives grandparents the right to “reasonable access” under specified circumstances. The right to “access” is not the same as the right to “possession”. A person with rights of “access to” children may approach them, communicate with them, and visit with them, but may not take possession or control of the children away from the managing conservator. By contrast, a person with rights to “possession of” children may exercise possession and control of the children, to the exclusion of all other persons, including the managing conservator, during periods of possession. The statute does not entitle a grandparent to a standard possession order as to the grandchild because the standard possession order grants “possession of” rather than “access to” the child.
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