Ask A Divorce Lawyer: Do grandparents have any rights to see their grandchildren following a divorce?

Question:

My son has two children with his ex-girlfriend, and they have been separated for more than 3 years. My son technically has joint custody of the kids, but he never sees them. His ex-girlfriend bars me from seeing my grandkids when I visit the city they live in; I travel there every year to see my family who also lives in the area. She has told the kids that I’m dead and that’s why they don’t see me. Is there anything I can do legally about this? Do grandparents have any rights to see their grandchildren following a divorce?
 

I must preface my answer that I do not practice in Texas.  However, Cordell & Cordell has many attorneys licensed and located in Texas who would be happy to help you.  Each state has different laws governing grandparent rights.  It is important that you contact a domestic litigation attorney licensed in Texas prior to taking any action.
 
Texas statutes govern the rights of grandparents to visit their grandparents.  Section 153.433 of the Texas Code governs possession or access to a grandchild by a grandparent.  It states:
 
The court shall order reasonable possession of or access to a grandchild by a grandparent if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;
(2) 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
(3) the grandparent requesting possession of or access to the child is a parent 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.
 
In reading the statute and your question, your situation would depend on your son. Part (D) says that you could have access to your grandchildren if your son does not have possession or access to the child.  He may have access but chooses not to exercise it.  If this is the case then you will have trouble asking a court to invoke your grandparent rights.  If your son does not have access to his kids despite his best efforts, then he should approach the court about his being denied access.  If he is being denied access, then you too may approach the court about being granted access.  However, you must demonstrate to the court that the children’s physical health and emotional well being are harmed by your lack of involvement in their lives.

Steven “Lee” Akins, Jr. is a Staff Attorney in the Memphis, Tennessee office of Cordell & Cordell, P.C. Mr. Akins practices exclusively in the area of domestic relations. He received his BBA in Finance from Southern Methodist University and continued his education to receive his Juris Doctor from Texas Wesleyan University.

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