We are seeing an increase in grandparents petitioning Texas courts for conservatorships or access to their grandchildren in child custody cases. In this episode, partners Brian Walters and Ryan Segall discuss grandparents’ legal rights, their qualifications for getting awarded visitation rights, and their experience handling these types of cases. Brian and Ryan wrap up the episode by answering frequently asked questions regarding cases involving grandparents’ rights.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Brian Walters: All right, well, welcome back to ‘For Better, Worse or Divorce’, I’m Brian Walters, here with our firm’s newest partner, Ryan, and today we’ll be discussing grandparent rights in family law cases and how courts in the state of Texas address those rights. We’ll also answer some of the most frequently asked questions and listener questions toward the end of the episode. But to start off, Ryan, have you or the folks in the Dallas office, had any cases lately involving grandparent rights? If so, what are your experiences with that?
Ryan Segall: Sure. So right now, I would say, me personally, I have about three or four active cases involving grandparents. I’ve represented both sides of the matter, including currently, I represent grandparents, and I’ve also represented parents having to defend against grandparents. So, we’ll take both sides of the spectrum here, on a case by case basis.
Brian Walters: All right. So, we were talking about it before the podcast, but a while ago when I was a young lawyer, so that was a while ago, a case came down from, not the Texas Supreme Court or Texas Appellate Court, but the United States Supreme Court, the highest court in the land, that’s called Troxel, was the name of the case, and they ruled about grandparent rights. And as with any Supreme Court ruling, it’s complicated, and there are multiple opinions, and all that kind of stuff. But basically, they said grandparents have very little, if any rights toward their grandkids. And that kind of reset the law in a lot of states, and changed the law in Texas to some extent, to come into line with that. And at that point there were very limited, if any rights for grandparents. And then, since then, additional court cases, there’s been additional legislation, and things have changed and have expanded and maybe contracted some too.
So, do you want to just give us a broad overview of grandparent rights, maybe kind of focusing on two or three of the most common scenarios? One of the most common ones, to me is, “Hey, I’m not getting to see my grandkids.” That’s one. Another one is, “Hey, I think my grandkids are being abused or neglected by their parents.” The third one is, one of the parents is incapacitated or dead or something like that. So those tend to be, at least from what I’ve seen in my experience, those are the three most common ones, but you want to just give us a broad overview of the law, and we’ll get into some of the specifics?
Ryan Segall: Absolutely. First one is the stereotypical situation of a grandparent not getting to see their grandkid, for one reason or another. And they’ll come into our office or in the attorney’s office, and say, “Hey, I want to see my grandkid, what can I do to do that?” And the Texas Family Code has specific provisions for when that is applicable and when it’s not, and really what it comes down to, I always tell any grandparent that comes into our office, that say “I just want to see my grandkids” the burden is on them to prove why they should be seeing this child.
Whether it is, and you alluded to it a little bit there, Brian, of significant impairments to the child. If there’s some sort of abuse or something like that, they have to prove that the burden of proof is on the grandparents to show why they should be getting, whether it be conservatorship, or just some access and possession to the child. And that’s the discussion that needs to happen also, is what is this grandparent looking for? Is the grandparent looking just to see the child, or does the grandparent want to step into that primary conservator role, and if that grandparent basically being the primary caretaker of the child? Those are factors to look at when you’re trying to figure out, okay, what is the strategy going forward for this grandparent, as to how they’re going to be able to see their child? Because just not seeing the child isn’t enough to clear the burden of why they should get visitation or why they should get conservatorship.
Brian Walters: Yeah, I agree. And it’s kind of heartbreaking. We’ve all sat in there with these grandparents. “I just want to see my grandkids. How could that hurt?” I know that was an important part of my childhood, was spending time with my grandparents. I was very fortunate with the ones I had. And they’re not here anymore, and I’m glad I got to spend all the time that I did with them. And it’s kind of heartbreaking, but on the other side, and that’s what this Troxel case out of the Supreme Court said, is essentially, this is a parental right.
These children belong to their parents. And we’re not going to interfere with that parent-child relationship unless we have a really good reason to do it. It’s two really strong compelling arguments on either side, but it’s real clear where the law leans, which is toward the parent. There’s always, I think, maybe some other reasoning behind legislation and things. Maybe we’ll have less family law litigation if every grandparent who didn’t think they were getting enough time with their grandkids could file suit, we’d have a lot more cases in the court, which nobody wants.
Ryan Segall:And so, going off that, to your point, the Texas Supreme Courts, I believe it was 2018 or 2019, there’s a case called In re H.S., and that case allowed grandparents to essentially have standing. And what that case defined was, there’s a portion of the Texas Family Code that specifies, if individual has actual care, control, or I believe it’s care, control, or possession of a child for at least six months, then they are able to have standing to bring the lawsuit. And what that did was it essentially, in my opinion, kind of open the floodgates, if you will, to grandparents being able to file in this situation. I want to be clear here, it doesn’t just apply to grandparents, it can be stepparents, it can be gay and lesbian couples, and things of that nature. Anytime there is an individual who has some sort of care/control of a child for the six-month time period, the Texas Supreme Court says you can file a lawsuit, and you have standing to do so.
The problem that has kind of arisen with that, and what that case defined was, what care and control actually meant. And the H.S. case specified that a parent and a grandparent could have control at the same time. In other words, if a grandparent’s taking the child to the doctor’s appointments, taking the child to school, they’re living together, things like that – Texas Supreme Court says, you know what? You guys can share in those responsibilities, and the grandparents will still have standing to file. So when you’re looking at things from a grandparent’s perspective, if the grandparent is actively involved in the child’s life, that case allows them to file the lawsuit. Now, that being said, you then have the case In re C.J.C that came out, I want to say it was last year, and that case kind of took back a little bit on the grandparents’ rights. And that case basically said there is a parental presumption that applies in every lawsuit, whether it be a modification or an original lawsuit, those parents are going to have what’s called the parental presumption. And Brian, maybe you can explain a little bit on that parental presumption.
Brian Walters: Yeah, it’s kind of what it suggests, which is that we’re going to presume that the parents are acting in the best interest of the child, and we’re going to essentially presume that they’re caring for them. And it can get very, very confusing very quickly with this six month rule. I had a flurry of these things around the COVID time. We had somebody, that happened in March, the kids were out of school suddenly, maybe they got a working single parent, and they said to the kids’ grandparents, “Hey, they’re not in school, I got to work, can you watch them?” And that’s what, Mid-March, right? And then summer rolls around, that’s three more months. And by the time school starts back up, you’re almost at the six-month point.
And now, a grandparent could jump in there and say, “Look, mom or whatever. You don’t have to say anything bad. I’ve had them for six months, she turned them over to me.” And of course, mom would probably say, “Well, look, I had to, and I thought she was just helping me out, I didn’t mean to give my kids to my mom.” So that was the type of situation that would occur. You could have them down the street, and they’d be bouncing back and forth between the two homes, and you could have somebody jump into a case. You’re right, I think it did open things up a little bit more than maybe was intended, with that particular case.
Ryan Segall: I spoke off the record, I spoke with Justice, an appellate Justice, here in Texas around the time, it was probably six months or so after the H.S. Opinion came out. And, that Justice had told me, she disagreed with the legislation of only being six months. She said it should probably be at least a year, maybe even two, because of exactly what you’re saying of, six months is not a long time period, in the grand scheme of things. Her thoughts were the legislature needs to change that because that is certainly six months like that, and then someone’s filing a lawsuit, and it could create problems. But of course, as a Justice and as attorneys we’re bound by what the statutes say, and if the statute’s clear on its face of six months, then that’s the six months. So, it’s something I’m interested to see if the legislature looks at, now that these cases are starting to come out, that are, on both sides of the matter. H.S. gives grandparents standing C.J.C. kind of restricts where they can go with that standing, so to speak.
Brian Walters:Yeah, absolutely. And the legislature’s only in session five months out of every 24, and we’re in one of those periods, so we might have some change in the law by May, which takes effect in September-
Ryan Segall: It’s one less month than a care/control/possession, so.
Brian Walters:So, let’s talk about the second scenario, which is that a grandparent thinks that one of their grandchildren is being neglected or abused in the home, by either parent or maybe there’s only one parent that’s really in the picture. So, what do we have for options here, for a grandparent, and how might that differ from say a neighbor observed the same?
Ryan Segall: Sure. So grandparents do have a specific provision in the code that allows them to basically file lawsuit and gain conservatorship if the child’s present conditions significantly impair the child. Whether it be through physical, or mental, some sort. We just call it, in the family law business, we just call it significant impairment. And the grandparents, if they see that neglect, or even if they somehow find out about it, they can come in and they can file a lawsuit. Typically, at the beginning of that lawsuit is usually some sort of temporary restraining order, or something along those lines, because it is usually some sort of an emergency situation in which they need to file, they need to get access quick, and they need to get that kid in a safe place. And so, the code does allow that to happen, even if they did not have that care/control six months, even if they don’t meet that standard, the grandparents can still file a lawsuit.
But again, that burden is going to be on them. So, I always have a frank discussion with any grandparents that come in, of are you going to meet that burden if things are happening with this child? If the child has a size too big of shoe, probably not going to get you there. But if the parties are on drugs, or things like that. I’ve represented grandparents that have had to file lawsuit, filed a temporary restraining order, and my clients ended up getting sole managing conservatorship of the child due to the fact that both parents were on drugs and couldn’t get clean. It’s a sad scenario, but the silver lining in that case is that there are grandparents that can step in and gain those sort of rights, and gain the ability to put this child in a safe place. And so, there are ways and methods out there for grandparents to step in, in those emergency situations, and that’s certainly something that our law firm handles.
Brian Walters:So, if you’re a grandparent seeing, what you think is abuse or neglect or legally we would call it a significant impairment, that’s certainly an option to run in. I think I’d recommend sitting the parent down or parents down and having an intervention. Like, “Look, this isn’t okay, I don’t want to go down this path.” I do want to talk for a second about the other way, which is that, let’s say we sit down with somebody, and say, “I don’t think that’s a significant impairment, but I certainly understand your concerns about your grandkids.” We’re talking about litigation here. So, litigation is expensive, time consuming, stressful and everything else, it’s the last thing you should do. You should try to work it out as a family internally, but if you can’t, I have had cases and grandparents who’ve come to me or I’ve been on the other side of it, where the grandparents were better off financially, they’re highly functioning people, and they said, “I understand we may lose, or we may have a difficult time in a courtroom, but I don’t care. This is my grandkids; I’m not going to take the risk.”
And you end up filing one of those lawsuits that may be not 100% chance of success. And a lot of times, frankly, those grandparents who do that end up getting what they want, either a significant change in behavior, or ending up with the kids. And it might be that they have the kids for a school year, dad gets sober, and they come back or whatever. But he who/she who has the better lawyer and the funds to do it very often get what they want in a courtroom. And especially if you have two parents or one parent that’s not functioning very well and lacks financial means. Fair or not, that’s the real world, and I’ve been on both sides of those and seen them happen.
And those end up settling most of the time. I think that’s one of the unknown things about this, is that even these cases still the vast majority of them settle, as much hard feelings as there can be. So, has that been your experience with it, is that most settle and sometimes it makes a lot of difference to have a good lawyer, and have good ability to pay them if you need to?
Ryan Segall: Yeah, I think, quite frankly, I think that last part is probably the biggest part of these things. It’s something, and I wrote an article about this when it first came out on the H.S. case, that the financial means, typically, not all the time, but typically, are going to be with the grandparents, just because they’ve been around longer, they’ve had more time to accumulate wealth. And yeah, it does absolutely drive a case. That was my problem with the H.S. ruling, is that it allows grandparents to have standing, and therefore, like you say, title of this thing, for better or worse. It is they’re going to have the financial backing to do it. And sometimes parents will not have those resources. And yeah, to your point, they’ve got no choice but to settle in some cases, because they can’t afford to keep the litigation going to fight the grandparents.
I’ve seen it. I’ve seen it in courtrooms. It’ll tear these families apart, of grandparents against their own kids, grandparents against the in-laws. Obviously, grandparents and in-laws are going to be a little bit of a different story, but I mean grandparents and their own children will not talk to each other because of this litigation. And they’ll drag each other through the mud in court, and their relationship will never be the same. I can list off three cases off the top of my head, where I’ve seen just people in court just going after each other, and the attorneys, we’ve got a job to do, and it’s crossed the other side, and bring out all these bad facts, and that’s what’s going to happen. And it is an unfortunate situation, but I think, in parts, that some of these cases that have come out have started allowing that.
Like you said, I don’t know what’ll happen with legislature, I don’t know. I think C.J.C. was kind of a step back on, not a step back, but certainly a step back towards grandparents’ rights. And it’ll be interesting to see how that is interpreted over the next several years or so, as that case gets flushed out, and all the cases on appeal get flushed out, and it’ll be interesting to see if it affects the grandparents’ filings and goes from there. Because I think, like you said, I think that the financial issues, whether we like to talk about it or not, that’s going to typically drive the case. And so, yeah.
Brian Walters:Totally agree. One last scenario, which is pretty rare but catastrophic, which is when you have one of the parents gone. Either they die, they get incarcerated for a long period of time, their rights are terminated, or sometimes they just disappear into thin air. So, that’s a different situation, a little bit different law on that. And it kind of makes sense, right? Because I think that the general concept of the law is, look, grandparents, try to work it out with the parents, your own child, who’s the parent of these kids. Try to keep this out of court, that’s a family matter, for the most part, you guys talk it out. But of course, if the parent is gone and there’s only a grandparent and they’ve got their grandkids, now they’re with, let’s say the other parent. Let’s say, I had a kid, and died, and my grandkid now is with the ex-husband of my dead daughter.
And probably in a lot of cases those folks would work it out. Like, sure, go see grandma. But if they don’t, now there’s some extra rights that a grandparent in that situation would have, which again makes to me more sense because they can’t deal with their own child to get it because their child’s gone and doesn’t have any rights. So how does that work generally? I guess I’d say, the way I look at it, you might be more specific, is it opens the door to a grandparent actually getting some access they otherwise would have a harder time getting, is that your take on it too?
Ryan Segall: Sure. Yeah. We had mentioned before, we touched a little bit on the Texas Supreme Court case of In re C.J.C., And that one, it wasn’t a grandparent, but what it was, was a parent died and the fiancé of that parent, who had acted as if a stepparent, and that person was trying to get some sort of rights to the child, and the Texas Supreme Court ended up saying, “Well, there’s a parental presumption, that parental presumption, if that parent is a fit parent then they’re going to make this call.” So, to speak and that’s kind of a very abridged version of what happened in that case. So, grandparents in the event that their child is incarcerated, or their child passes away, they have a specific code in the Texas Family Code. I actually pulled it up because I had to look at it before this podcast.
It’s 153.433, and it specifies exactly what has to happen for the grandparent to get any sort of access and possession. And it’s still the same thing of, that they do have to prove that them not having any possession would significantly impair the child’s physical health, or their child’s emotional wellbeing. They still have to prove that even if their child, which would be the parent of the child, passed away, they still have to show, well, here’s why it’s important for us to have possession. And in my opinion, if there is a fit parent who’s been taking care of the child, hopefully that parent and the parents of the deceased parent can get along and allow the child to see the grandparents on that side. But, in my opinion, if there isn’t any reason why that parent isn’t allowing the child to see the grandparents and the grandparents can’t prove that they should be having some sort of access and possession, I just don’t think the court will order it with these statutes and the burden that’s on these grandparents, I think.
But again, Brian, it goes back to what we were talking about earlier with the finance’s thing. They may still file and that’s kind of where it comes down to. It’s not necessarily what the court’s going to do, but being able to get your foot in the door, and that’s sometimes half the battle on these things. So, I think what the court would probably look at in these scenarios, how much time these grandparents have been with this child, I think that’s a huge factor in it. If the grandparents were seeing the child five days a week and a parent passed away, I think at that point you’re probably going to be able to make some arguments for the grandparents. But if it’s a once every few months sort of deal, I don’t believe that the grandparents would have enough, but of course, everything is on a case-by-case basis.
Absolutely. Well, it’s a complex issue as we’ve just have spent 25+ almost 30 minutes talking about. I get calls sometimes, “I want to assert my grandparent rights” and that’s a loaded term as we’ve laid out here, it’s pretty complex. If you’re serious about this and these are serious problems, I’ve yet to see anybody come into my office about this who wasn’t serious, then talk to a good lawyer. It is a complex issue. I’ve seen a lot of lawyers make mistakes and kind of file the wrong kind of case about grandparents, because they really don’t understand these subtleties that we’ve been discussing.
So, talk to a good lawyer, hopefully somebody board certified or are very knowledgeable about it, hopefully with experience in it, so you don’t get going down the wrong road. That’s certainly an embarrassing day. I’ve seen it before, where I’ve been against somebody who, their lawyer sided the wrong statute or filed the wrong kind of case. You don’t want to be the client standing next to that lawyer. So, all right, well that’s all we have for today. If you like what you’ve heard, please do us a favor and leave us a review. We appreciate all your feedback, especially since it helps us make a better podcast. If you have any questions, reach out to us at email@example.com. I’m Brian, joined by Ryan, and thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening, until next time.