Grandparents Rights in Texas – Regarding Grandchildren
The statutory rights of grandparents in response to a child in the State of Texas, absent existing executions, are minimal. The Texas Courts observe the rights of the parents to prohibit visitation and communication of these children from their grandparents if the parents wish. There are however limited circumstances when grandparents of a child may petition the Court to receive an order that forces the child’s parents to let the grandparents see the children on a regular basis. Texas Courts honor the rights of the parents and must presume that a fit parent makes such decisions, as to who the child may or may not see, those decisions are in the best interest of the child.
In order for a grandparent to interfere with a parent’s right to prohibit the grandparents from seeing the child, the grandparent must prove three elements under 153.433 of the Texas Family Code:
a) The Court may order reasonable possession of or access to a grandchild by a grandparent if:
- At the time the relief is requested, at least one biological or adoptive parent of the child has not had the parent’s 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 the parent’s 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 grandparents requesting possession of or access to the child are a parents of a parent of the child and that parent of the child:
A) Has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
B) Has been found by a court to be incompetent
C) Is dead; or
D) Does not have actual or court-ordered possession of or access to the child.
This Statute is limited in application because the Texas legislature gives deference to the parents’ fundamental authority to determine who their child may and may not see.
An example will help clarify this Statute. If a grandparent’s son died in car accident and the grandparent had been helping their son and daughter in-law raise the children, then the grandparents could request visitation rights. The daughter in-law would have to be alive and not have her parental rights terminated. The grandparents would have to prove to the Court by a preponderance of the evidence (more probable than not) that the denial of visitation would significantly impair the children’s’ physical health or emotional well-being. If the grandparents were helping raise the children the grandparents would request some type of visitation for the well-being of the children. These fact situations must be significant because Texas Courts and statutes make it difficult for grandparents to receive any type of visitation or possession if it is not in line with the parents’ wishes.
If you are a grandparent or a mother/father of a child in which the grandparents are attempting to sue you for some type of visitation, it is important to contact a qualified attorney to be informed of your options.
Termination of Parental Rights Limitations in Texas
There are times in life when unintentional pregnancy occurs in the context of fatherhood. There are times when an individual believes he is a father but in the distant future discovers that he is not the genetic father of the child. If a divorce results from this union the man that is not the genetic father of a child may not wish to pay child support for this child for up to 18 years. In these circumstances, a man may wish to terminate his parental responsibilities to the child to avoid paying child support on the child that is not his generically.
Under the Texas Family Code 161.005, a father may terminate his parental rights to a child if (1) he is not the genetic father and (2) a signed acknowledgment of paternity or the father failing to contest parentage of a child was due to a mistaken belief that the man was the genetic father of the child based on misrepresentations that led him to that conclusion.
Basically, the man must not be the genetic father and he must have been deceived by misrepresentations made by the mother or other family members in order to successfully prevail in a termination suit. The man wishing termination must file the suit within two years from first becoming aware that he is not in fact the genetic father of the Child. The importance of this two year limitation is that that it begins when “the man first becomes aware that he is not the genetic father of the child”. This means that a man may be adjudicated and considered the father for ten years but after he discovers or becomes aware that he is not the genetic father of the child he will have an additional two years to file suit and terminate his parental rights.
There are certain limitations under Family Code 161.005 that will not allow a man to terminate the legal relationship. These are:
- The man is an adoptive father;
- The child was conceived by assisted reproduction and the man consented to assisted reproduction by his wife under subchapter H, Chapter 160, or
- The man is the intended father of the child under a gestational agreement validated by a court under subchapter I, Chapter 160.
These three areas of adoption, assisted reproduction, and signing of a gestational agreement will prohibit a man from terminating his parental right or attempting to release himself from the responsibility of being a father, which includes child support.
In most instances a man will bring a termination of parental right because he has been misled into believing that the child is his when in actually the man is not genetically related to the child at all. The parental termination will end child support for minor children that are not genetically related.
A parental termination suit should not be filed before careful thought since it will terminate any rights the man has to the child and most importantly the man will relinquish his right for visitation access and decision making. If you are desiring to terminate the parental rights of a child you should contact an experienced lawyer to ensure that you qualify and that the suit proceeds as smoothly as possible allowing the court to make a ruling that favors your termination.
Standard Possession Orders in Texas
The possession order for both mother and father in any divorce must be in the Best Interest of the child and the Court has specific guidelines it must follow if both parents refuse to agree to custody arrangements. The Managing Conservator has primary custody of the child and the Possessory Conservator has visitation but is not the primary custodian of the child. The guidelines set forth by the Court regarding custody for parents living 100 miles or less of each other and parents that reside over 100 miles from each other are listed in the Family Code § 153.312 and § 153.313.
Family Code § 153.312 Standard Possession Order, regarding parents who reside 100 miles or less of each other, states the Possessory Conservator will have the following rights:
- Have custody of the child throughout the beginning of the year at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday.
- On Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m. unless the Court finds this is not in the best interest of the child.
- Custody of the Child for 30 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If Possessory Conservator does not give written notice on April 1st, then the Possessory Conservator shall have access to the child from 6 p.m. July 1st to 6 p.m. July 31st of each year.
Family Code § 153.313 Standard Possession Order, regarding parents who reside over 100 miles from each other, states the Possessory Conservator will have the following rights:
- Have custody of child throughout the beginning of the year at 6 p.m. on Friday of the first, third, and fifth weekend of each month and ending at 6 p.m. that Sunday. The Possessory Conservator may also elect an alternate weekend if he/she gives a 14-day notice either written or telephonic to the Managing Conservator.
- The visitations on Thursdays nights are not mandated under this section due to the distance between the two parents.
- Custody of Child for 42 consecutive days during the summer but the Possessory Conservator will be required to give written notice to the Managing Conservator by April 1st of each year specifying the extended period of possession for the summer. If the written notice is not given then the Possessory Conservator shall have access to the child from 6 p.m. on June 15th to 6 p.m. July 27th.
The Court shall follow these guidelines unless it is NOT in the Best Interest of the child. These guidelines are needed because of the contention between both parents and the common inability to find a middle ground when it comes to custody of a child. The Court may deviate from these standard Guidelines but only if a parent can prove by clear and convincing evidence that it is in the Best Interest of the Child. If these guidelines are unworkable because of the child’s schedule then the Court will make exceptions but attempt to keep the custody arrangements as close to the guidelines as possible. Custody issues can be vexing and straining on both parents. To ensure you receive a fair outcome to see your child, it is wise to seek an experienced attorney to ensure that the sacred right to see your child is not infringed.
Cohabitation & Domestic Partnership Agreements in Texas for Boomer & Senior Couples
Premarital and post-marital agreements in Texas have a complex history immersed in the community property presumption, the state constitution, statutes and case law. Originally, such agreements were found to be unenforceable. But with amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, such agreements are now enforceable under contract law.
For many Boomer and Senior couples, living together is a precursor to marriage; for others because of family issues or commitments, there is no intent to ever marry. The simple fact is, domestic partnership agreements address a wide variety of circumstances, many involving established adults who want to be together but because of prior financial and family commitments prefer to have an applicable contractual agreement for their legal needs.
Many couples choose to live together so they do not lose certain benefits under current rules of social security, military and insurance disability programs, or to stop those benefits from being taken away from their children. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. In situations such as trust funds or inherited funds, beneficiaries simply do not want to place family money at risk. Other couples choose to shelter their own resources from the real or perceived obligations of their partner.
The marital agreement is considered to be a contract under Texas law. The premarital agreement must be in writing and signed by both parties. No actual consideration is required; however, to conform to contractual law, it may be wise to provide benefits for the non-monied party to avoid a later finding of unconscionably, particularly if the financial or physical condition of the non-monied party under the agreement is poor.
Matters that may be dealt with in a premarital agreement include, but are not limited to, the following:
- the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- The rights and obligations of each of the parties in any of the property of either or both of them whenever or wherever acquired or located;
- The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- The modification or elimination of spousal support;
- The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- The ownership rights in and disposition of the death benefit from a life insurance policy;
- The choice of law governing the construction of the agreement; and
- any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
In post-marital agreements, it has been noted that a fiduciary duty exists that is not present in pre-marital agreements between spouses or prospective spouses. Case law states that a confidential relationship between husband and wife imposes the same duties of good faith and fair dealing on spouses as required of partners and other fiduciaries. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. Texas Legislature enacted Section 4.105 with the understanding that married spouses owing fiduciary duties to one another would negotiate and execute post-marital agreements. Notwithstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable.
Beside a Cohabitation and Domestic Partnership Agreement, what other documents should you supplement for a more complete legal coverage?
- A will with a designated executor to handle execution and distribution of all assets
- A durable financial power of attorney
- A durable medical power of attorney, directive to physicians, and a HIPPAA release form
- Partnership agreement to set out and clarify property rights, define ownership and related issues upon dissolution
Cohabitation, domestic partnership, premarital and post-marital agreements may be as creative as a party determines necessary. However, care must be given to see that such agreements protect the party, keep with public policy, and adhere to current Texas family law and applicable contractual law.
Love and Marriage ….and Divorce!
With the U.S. marriage rate at an all-time low, 51% of adults were married in 2011 (US Census Bureau), only 29% of all divorced adults say they would marry again with women definitely in the negative on remarriage. Americans are also not in a hurry to marry. The median age of first marriages is a record high of 29 for men and 27 for women (US Census Bureau).
So what about the 48% of adults currently married? A new divorce report by the Slater and Gordon Law Firm in England who surveyed 1000 divorcees has reflected some very interesting findings:
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The average person spends about 2 years thinking about getting a divorce before they file.
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During this time the average person spent 18 months really trying to fix their marriage and working to try to save the marriage.
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53% discussed divorce with someone besides their partner before filing.
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36% spoke to an attorney before deciding to file a divorce
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76% tried to fix their marriage problems before deciding on a divorce
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53% said their split was amicable and 45% said they are still friends
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31% have no contact with their previous spouse at all!
How would you fit into this survey?
The Nacol Law Firm PC has expressed 8 of the top causes of Divorce!
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Lack of communication: A successful relationship constantly keeps in touch! When there is a loss of open ended communication on all issues affecting the marriage, families may fall apart quickly. Share your feelings, tell your partner what is happening, and listen to your partner.
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Money and Finances: If there are constant money problems or major disagreements on financial issues, you may have a serious martial problem. A team effort at all times bodes for a better marriage.
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Alcohol and Drug Addiction: Addiction is one of the most damaging and challenging problems spouses will ever face in a marriage. Because additive behavior touches everyone in a family most marriages are severely damaged years before a decision is reached to end the marriage.
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Domestic Violence/ Intimate Partner Violence: Family Violence is the willful intimidation, physical and/or sexual assault & battery or serious mental and verbal abuse perpetrated by one intimate partner against another. The frequency and severity of domestic violence varies dramatically and may include physical or sexual violence, threats, and emotional abuse. The violence is often accompanied by irrational and controlling behavior and is intended to result in total dominance and control over the other spouse /intimate partner or other family members.
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Trust and Infidelity Issues: Do you truly trust your spouse? Are their jealousy issues that occur with one spouse when other people are involved in your lives? A successful marriage is very difficult absent trust. If you do not trust your spouse the marriage is vulnerable!
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Spouse cannot understand or fulfill your needs and desires: this includes personal and sexual needs and common courtesies to each other. We all have different needs and desires. If you or your partner won’t acknowledge each other’s needs and try to accommodate, the marriage is vulnerable!
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Inability to resolve conflict: Often couples have very serious trust issues with each other and cannot get past the needs of one vs the needs of the family. Smart couples will seek out a 3rd party “referee” to help resolve these differences before the marriage is irretrievable.
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Children: Enough said! The married couple must decide on a united front in child rearing and discipline. The child cannot be in charge or subject to multiple contradictory directives!
Deciding to divorce is a very sad and financially devastating family decision. If you and your spouse are still at the point to possibly change things for the better, explore all other opportunities! There was a reason for the initial attraction and your family will love you for it. Otherwise, consult a qualified legal professional who can help guide you through this trying period.
