More than 2.5 million grandparents are stepping into the role of parent, according to a recent USA Today article. Although this is not a novel concept, the numbers are the highest they have been in over 40 years.
This increase is the result of many factors, including parental death, substance abuse, incarceration, military deployment and abuse or neglect. The recent economic woes have also played a part in this shift, with unemployment hitting workers between the ages of 22 and 34 twice as hard as those aged 55 to 64.
Although studies have found that grandparents play an important role in the lives of their grandchildren, the court system continues to look unfavorably on a grandparent’s legal rights.
A classic court case, Troxel v. Granville, established that parents have a fundamental right to be involved in the lives of their children and to make decisions regarding their “care, custody and control.” By extension, courts have interpreted this to mean that grandparents do not have a constitutional right to see their grandchildren.
Although grandparents do not have a right to be involved in their grandchildren’s lives, they do have some legal rights. For example, a grandparent can file a lawsuit asking for custody of their grandchildren under Texas law in many situations, including if the child resided with them for six months or there is proof that the biological parents are abusive.
If these situations are established, the court makes a custody determination by applying the “best interest of the child” test. This test includes a parental presumption that the best interest is always to be raised with the child’s biological parents.
This presumption can be beat, but it is difficult.
Generally, a court will look past the presumption if the grandparent can prove that living with the biological parents is very harmful to the child’s well-being. Once this presumption is overcome, the court will consider a wide array of factors to determine what is in the child’s best interest. These include the child’s desires, stability of the home and the presence of a criminal background in potential care giver.
Determining custody can be time-sensitive. If you are a grandparent fighting for custody of your grandchild, it is important to contact an experienced child custody attorney to better ensure protection of your legal rights.