Grandparents rights?

[concerned]

Dear Socrateaser,

DH has a child with an exgirlfriend who has been babysat by his parents for the last 5 years, baby until 5 years old.  His parents agreed to do this for them to help them out since they were young and so they could attend school or work.  They arranged their life around the child and did it free of charge, but are no longer babysitting the child.  The child stayed the night at the grandparents house often but for the past year they had an arranged overnight of once a week.  

The exgirlfriend decided to take DH to court for child support last year.  He always thought they had a good relationship and was shocked by this, but agreed to it and while in court they had custody determined as well.  The judge ordered joint legal custody and the standard average visitation of one night a week and every other weekend as a temporary order until they go back to court for a permanant order.  The grandparents were upset that the judge did not order them any visitation rights.

DH and the exgirlfriend had a meeting to talk about things and discovered that his parents had been telling her things about him that were untrue to make her think he was a bad person and vice versa.  The lies resulted in the exgirlfriend from keeping the child from him and the grandparents would keep the child from him as well.  The grandparents also talk bad about the exgirlfriends new spouse trying to get the child not to like him.  The meeting went well for DH and the exgirlfriend and their relationship has improved.

Because of what was found out at the meeting the grandparents are no longer allowed an overnight, but can pick up the child almost anytime they want for a couple of hours.  The grandparents are now upset and plan to retain a lawyer so they can have more visitation rights.  They have even talked about having an advocate come into all of the homes to question the child and the parents.  They believe that because they watched her all these years they have the right to visitation and that the grandchild should be with them just as much or more than her parents.

The grandparents harrass the exgirlfriend to see the child.  They call her all the time, go over to her house uninvited, have talked to the neighbors when she wasn't home, and have even shown up in public places where she was taking the child uninvited.  They do have a close relationship with the child, but it does not seem healthy.  They are trying to make her so dependent on them that she will be afraid without them.

1.  Do the grandparents have any rights to visitation?

2.  If the grandparents hire an advocate do the parents have to participate or can they mutually agree not to participate?

3.  If the grandparents do have some rights will their past behavior hinder their case?

Thank you!  :)

     

[socrateaser]

>1.  Do the grandparents have any rights to visitation?

ANY third party has the right to petition the court for visitation with a child, however the petitioner bears the burden of overcoming the legal presumption that the child's parents are not acting in the child's best interests by restricting or foreclosing visitation and that the child will be harmed if the visitation is not granted.

This is not an easy burden to overcome -- nearly impossible for a third party who has no meaningful relationship with the child. If you show that the relationship is abusive or dysfunctional, then the court will not grant visitation. Your facts state that the grandparents have an established relationship with the child, but that the relationship is not a positive one, therefore, on your facts you will prevail. However, if the grandparents show that the relationship is positive, then they will prevail.

>2.  If the grandparents hire an advocate do the parents have
>to participate or can they mutually agree not to participate?

You have the right to pursue life, liberty and property, except upon due process of law. If you don't want to participate, only a judge can force you.

>
>3.  If the grandparents do have some rights will their past
>behavior hinder their case?

Maybe, but you will need to prove their bad behavior to the court's satisfaction, just as the grandparents must prove that their relationship is positive for the child. Court is not necessarily about the truth -- it's about what you can PROVE.

[concerned]

Dear Socrateaser,

Thank you very much for your response.  The facts are pretty much the same as before with a few new ones I'll add.  

The grandparents have hired an attorney for their grandparents rights.  They want one overnight a week.  They were planning on taking the mother to court assuming that DH would help them.  DH thinks what they are doing is wrong and has told them so.  

The grandparents have been asking DH for paperwork his attorney drew up to submit to the court for the temporary custody plan to give to their attorney to use in their case.  They even called DH's attorney trying to get the paperwork that way and was told it was up to DH.  He told them no.  Now they are saying that if he doesn't give them the paperwork they are going to take him to court.

Also, here is the statute regarding grandparents visitation rights in our state below:

(1) Any grandparent of a child may, in the manner set forth in this section, seek a court order granting the grandparent reasonable grandchild visitation rights when there is or has been a child custody case or a case concerning the allocation of parental responsibilities relating to that child. Because cases arise that do not directly deal with child custody or the allocation of parental responsibilities but nonetheless have an impact on the custody of or parental responsibilities with respect to a child, for the purposes of this section, a "case concerning the allocation of parental responsibilities with respect to a child" includes any of the following, whether or not child custody was or parental responsibilities were specifically an issue:

(a) That the marriage of the child's parents has been declared invalid or has been dissolved by a court or that a court has entered a decree of legal separation with regard to such marriage;

(b) That legal custody of or parental responsibilities with respect to the child have been given or allocated to a party other than the child's parent or that the child has been placed outside of and does not reside in the home of the child's parent, excluding any child who has been placed for adoption or whose adoption has been legally finalized; or

(c) That the child's parent, who is the child of the grandparent, has died.

Here, the parents were never married, the parents have joint legal custody, and both parents are living.


1.  Based on the statute can the grandparents still seek a court order even though a, b, and c of the statute doesn't apply here?

2.  Would the grandparents have to take both parents to court or just the custodial?

3.  If they were awarded visitation rights does it change the child support calculation?              

4.  If they tried to take the parents to court for childcare expenses could they be successful?

Thank you!

 

[socrateaser]

>1.  Based on the statute can the grandparents still seek a
>court order even though a, b, and c of the statute doesn't
>apply here?

Statutes that use the phrase, "include the following...", are usually interpreted by a court as, "include, but are not limited to...". I don't know if there is already case law in TX on this particular statute or issue, but you can bet that the judge is gonna give the grandparents an opportunity to make their case, should they chose to bring it to court.

>2.  Would the grandparents have to take both parents to court
>or just the custodial?

Probably just the custodial parent.

>
>3.  If they were awarded visitation rights does it change the
>child support calculation?      

Depends on the TX support statutes. At common law (non-statutory, judge made law) the court has no authority to order child support at all. Therefore, matters like this are wholely controlled by state statutes. If TX support law doesn't expressly state that a grandparent can be ordered to pay support, then the court can't order it, unless an appellate court decides that it's time to change common law to include grandparent support.

>4.  If they tried to take the parents to court for childcare
>expenses could they be successful?
Only if the grandparents actually were awarded custody in some amount.