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I am very sorry for the loss of your daughter and now the comfort of your grandchildren. It is good that they are still in Texas, that will make it easier to find them and hopefully be able to mend the riff so that everyone can heal. It could be that your son-in-law is grieving and his isolation may not have anything to do with you or separating you from the children. It could be too painful for him to face you.
I would approach him from that viewpoint once you find them, with an open mind and heart. However, if that does not work, you do have the courts to determine whether visitation with you is in the best interests of the children.
Grandparents may file suit requesting custody if they believe it is in the child's best interest. Visitation statutes vary widely from state to state. In Texas, a court can authorize grandparent visitation of a grandchild if visitation is in the child's best interest, and one of the following circumstances exists:
- The parents divorced;
- The parent abused or neglected the child;
- The parent has been incarcerated, found incompetent, or died;
- A court-order terminated the parent-child relationship; or
- The child has lived with the grandparent for at least six months.
Visitation statutes do not give a grandparent an absolute right to visitation. Also, a grandparent may not request visitation if the grandchild has been adopted by someone other than the child's step-parent.
The courts look ultimately to the best interests of the child to determine visitation. However, the competent parent's rights to chose whether the grandparent will have access to the children is still the guideline the court follows first.
These two Texas Supreme Court cases have greatly clarified the Texas grandparent rights statutes, both substantively and procedurally. These clarifications are summarized in the following points:
1. If It Looks Like a Duck . . . In Mays-Hooper, the Court found Troxel's facts "in all relevant respects the same as those here." According to Mays-Hooper, a plurality of the Troxel bench found the Washington visitation statute "unconstitutional as applied, pointing to three factors: (1) the child's mother was not unfit, (2) her decisions about grandparent access were given no deference, and (3) she was willing to allow some visitation." Because the facts in Mays-Hooper were "virtually the same" as in Troxel, "the judgment must be the same, too." This meant that the trial court's order allowing grandparent access could not stand. The lesson to be learned? If the facts in a given grandparent access case are like Troxel or Mays-Hooper, then grandparent access cannot be imposed.
2. A Little Possession Prevents More. In Troxel and Mays-Hooper, an important fact mentioned by both courts was that the mother had permitted the grandparents "some" visitation. In Troxel, that visitation consisted of one day per month; in Mays-Hooper, the Court stated only that there was "no evidence that [the mother] intended to exclude [the grandparent's] access completely." Although neither Troxel nor Mays-Hooper so states, one might very well reason that a parent who shuts off grandparent access significantly impairs a child's physical health or emotional well-being. Under Troxel and Mays-Hooper, a parent who allows "some" access will prevail in a grandparent access suit. Only a parent who disallows access completely risks a court order requiring access.
3. Evidence of Significant Impairment Must Be Stout. As amended, Tex. Fam. Code section 153.433(2) permits grandparent access orders over the parent's objection only if denial of access "would significantly impair the child's physical health or emotional well-being." In Derzapf, the Court emphasized how tough this standard is. An expert psychologist testified that cutting off grandparent access could be "harmful" to one of the children. He also said that "it was in the children's best interest that they have some contact with their grandparents." Finally, the expert "noted the children's 'sadness' at being unable to see their grandparents," but he conceded that the feelings of sadness "did not rise to the level of a significant emotional impairment." Emphasizing the word "significant," the Derzapf Court concluded that there had been no showing that depriving the children of grandparent access would significantly impair the children's physical health or emotional well-being.
4. Mandamus Can Be Appropriate Relief. Except in termination cases - which are not defined as suits affecting the parent-child relationship in Texas - there is no right of accelerated appeal from a court order granting or denying possession or access. But Mays-Hooper and Derzapf both have shown that mandamus relief is appropriate in cases where a trial court has ordered grandparent access. In Mays-Hooper, the Court did not struggle with whether the extraordinary remedy of mandamus might be appropriate because both parties agreed that the remedy should apply. The Derzapf Court formalized the availability of mandamus relief for grandparent cases:
The temporary orders here divest a fit parent of possession of his children, in violation of Troxel's cardinal principle and without overcoming the statutory presumption that the father is acting in his children's best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate.
This reasoning does not, however, support the conclusion that stymied grandparents necessarily could invoke mandamus relief. To the contrary, the Derzapf Court emphasized that "grandparents' rights are generally subordinate to a parent's."
I know all of this is complicated and the law is more on the side of the father in this case since the mother has passed away. That is why I stress the need to try to mend fences first and get him to come around to allowing you to see your grandchildren rather than first filing a lawsuit. Once you file the suit, you cannot take it back and you may lose getting to see them until they are adults and can make their own choices.
Also, you will need an attorney to handle the litigation if that is the route you have to take. Here are some resources for you.
The Legal Hotline for Texans
The Hotline provides services to Texas residents age 60 and older. Call(NNN) NNN-NNNNor go online at www.tlsc.org/hotline.html.
Area Agencies on Aging
Area Agencies on Aging provide many services to their communities. You can contact the office in your area by dialing 2-1-1 or by calling the Texas Department of Aging and Disability Services at(NNN) NNN-NNNN
You can contact Texas Access with questions about child custody and visitation at(NNN) NNN-NNNNor online at www.lanwt.org/txaccess/welcome.asp.
I wish you and your family the very best.
Thank you again for trusting us with your problem. Good luck and Godspeed.
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Edited by Lawdoctor on 3/1/2010 at 9:49 PM EST