Texas Law Governing Grandparent Custody & Access To Grandchildren
John Wilson • April 28, 2020
Constitutional Challenges to Grandparent Access
Texas Family Code §153.432 provides the authority for grandparents to maintain the standing necessary to file a suit to request access and visitation of their grandchild. The Texas Family Code further states that a grandparent “may request access to a grandchild by filing . . . an original suit . . . filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.” TEX. FAM. C. §153.432 (emphasis added). This statute can give a grandparent standing to file their suit with a Court, and also gives a Court jurisdiction to hear their case and make a decision on whether to grant them reasonable visitation under Texas Family Code §153.433 (§153.433).
Constitutional Challenges To Grandparent Access
Texas Courts have historically rejected constitutional challenges to grandparent access statutes and allowed grandparents to have reasonable visitation with their grandchildren, regardless of the wishes of a parent, when the Court determined that the visitation was in the best interest of the child. See Dolman v. Dolman, 586 S.W.2d 606, 608 (Tex. Civ. App.–Austin 1979, writ dism’d w.o.j.); Deweese v. Crawford, 520 S.W.2d 522, 526 (Tex.Civ.App.–Houston [14th Dist.] 1975, writ ref’d n.r.e.) However, the United States Supreme Court’s decision in Troxel v. Granville has caused great debate as to whether Texas Family Code §153.433 (§153.433), which allows court’s the authority to order grandparent access, is constitutional. Troxel v. Granville, 530 U.S. 57 (2000). Fortunately, Texas courts have, thus far, maintained that §153.433 is not “facially” unconstitutional and have allowed grandparent access in many cases despite the ruling in Troxel.
Two Ways To Challenge The Constitutionality Of A Statute
There are two ways in which a statute may be constitutionally challenged. A statute may be challenged that it is “facially invalid“ or that it is unconstitutional “as applied.” See Appraisal Review Bd. of Galveston County v. Tex-Air Helicopters, Inc., 970 S.W.2d 530, 534 (Tex. 1998); Texas Workers Compensation Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). A statute is “facially invalid” if it could not be constitutional under any circumstances. See Tex-Air Helicopters, Inc., 970 S.W.2d at 534. Conversely, a statute that is “otherwise constitutional may be declared unconstitutional . . . as applied to particular persons, circumstances or subject matter.” 12A TEX. JUR. 3d Constitutional Law § 38 (1993) (emphasis added). In Troxel, the U.S. Supreme Court held that a very broad Washington statute, which allowed the courts to order visitation for any person at any time if the court found that the visitation was in the best interest of the child, was unconstitutional “as applied” to the facts of the case. Troxel, 530 U.S. at 67-68. The Troxel court did not find that all grandparent access statutes were unconstitutional. Consequently, a party wishing to challenge the constitutionality of a state’s grandparent access statute must do so in the courts of that state.
Under Texas law, all statutes are presumed to be constitutional and it is the burden of the party challenging the constitutionality of a statute to rebut this presumption. See General Services Com’n v. Little-Tex Insulation Co., Inc., 39 S.W.3d 591, 598 (Tex. 2001). This presumption of constitutionality is very difficult to overcome, especially in light of the fact that Texas courts must not hold a statute unconstitutional unless “it is absolutely necessary to so hold.” Texas State Bd. of Barber Examiners v. Beaumont Barber College, Inc., 454 S.W.2d 729, 731 (Tex. 1970). “Before a legislative act will be set aside, it must clearly appear that its validity cannot be supported by any reasonable intendment or allowable presumption.” Ex Parte Austin Indep. Sch. Dist., 23 S.W.3d 596, 599 (Tex.App.– Austin 2000, no pet.).
Texas Statute For Grandparent Access
Unlike the statute in Troxel, the Texas statute granting grandparent access is specific in that it only allows grandparents to gain access to children and, then, only under certain circumstances. See TEX. FAM. C. §153.433. Under § 153.433 “[t]he court shall order reasonable access to a grandchild by a grandparent if . . . access is in the best interest of the child, and . . . the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition . . .; (or) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents’ marriage is pending.” TEX. FAM. C. §153.432 (emphasis added). Because the Troxel Court merely found that the Washington statute was unconstitutional “as applied” and because of the specificity of §153.433, no Texas court has found §153.433 to be facially unconstitutional. See In Re C.P.J., 2003 WL at 3. Therefore, it is only reasonable to challenge the constitutionality of §153.433 “as applied” to the specific circumstances of each case.
In another case, In Re C.P.J., the Dallas Court of Appeals held that the trial court’s order granting grandparent visitation under §153.433 did not violate the constitutional rights of the parent. The grandparents in that case were awarded court ordered visitation with their grandchildren after the children’s mother, who was the grandparent’s daughter, died of Leukemia. The father of the children testified to the trial court that he was not refusing visitation, but simply did not want court ordered visitation because he wanted to make decisions on visitation that would be flexible with the children’s schedules. However, there was also testimony that the father continuously denies the grandparents visitation with the children, was rude to the grandparents and occasionally refused to speak with them. The trial court’s order took the father’s scheduling conflicts into consideration and ordered visitation around any conflicts. The Dallas Court of Appeals held that the trial court crafted it’s decision with “at least some special weight to the parent’s own determination” as required in Troxel and that the father’s constitutional rights had not been violated with the court’s order.
Texas Grandparent Custody & Access Rights
Texas does provide a constitutional and legal right for grandparents to see their grandchildren, and a court can enforce a grandparents right to visit a child in certain situations. Our Dallas Family Lawyers can assist you in seeking and enforcing your grandparent access rights. If you’re wondering what rights you might have as a grandparent, please see our Grandparent Access
web-page or call us today at 972-248-8080.
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Female Divorce Attorneys in the Dallas-Fort Worth Area In many instances, divorce cases are challenging and emotionally taxing experiences. For this reason, it’s common for people to prefer working with an attorney of the same gender because they feel as though the attorney can empathize and understand their situation more. At the end of the day, the gender of your attorney may not affect the outcome of your case, but it’s important to feel as comfortable as possible while navigating through the process. At Wilson Whitaker Rynell, our experienced female divorce attorneys offer compassionate and empathetic approaches while they develop a comprehensive legal strategy to represent you. Why Should You Choose a Female Divorce Lawyer? There are many reasons why hiring a female divorce attorney can help you throughout your divorce. For one, they often have experience working on issues that disproportionately affect women in divorce such as spousal support (alimony), child custody disputes, and asset division. Additionally, female divorce lawyers offer a unique level of empathy, understanding, and communication. As a result, many clients feel that they are more approachable and compassionate, which is beneficial when dealing with the emotional turmoil of the process. More importantly, female divorce attorneys are more familiar with how the court treats women in divorce cases and use this knowledge to strategically protect their clients’ interests, whether male or female. Why Our Female Divorce Attorneys May be Right for You At Wilson Whitaker Rynell, our female divorce attorneys are skilled, knowledgeable professionals, they also have many years of experience in handling complex divorce cases. Whether it’s issues surrounding custody of children, alimony, or asset division, our female divorce lawyers ensure each client receives high-quality legal advice. Our firm’s female divorce attorneys provide the highest level of personal attention, ensuring that each client’s unique needs and concerns are addressed through every step. Unique Challenges Women Face in Family Law Disputes in Texas Family law disputes can be emotionally charged and legally complex, especially for women navigating the process in Texas. Women often encounter unique challenges due to their roles in the marriage and family dynamic, particularly when it comes to child custody, child support, and the division of marital assets. Child Custody Challenges In many marriages, women take on the primary caregiving role for their children. However, when it comes to custody decisions, courts in Texas prioritize the best interests of the child over parental gender. While this often works in favor of mothers, women may still face hurdles in proving they are better suited to provide the stable environment the child needs, especially if their ex-spouse disputes custody. Factors such as work schedules, living arrangements, and financial stability can come under scrutiny. Child Support Issues While Texas law allows women to seek child support, collecting these payments can sometimes prove difficult. Women awarded child support may find themselves dealing with ex-spouses who delay payments, make partial payments, or refuse to pay altogether. Enforcing child support orders often requires legal intervention, which can add to the emotional and financial strain. Division of Marital Assets In Texas, a community property state, marital assets are typically divided equitably during divorce. Women who are awarded assets such as the family home may face challenges related to maintaining the property, refinancing a mortgage, or covering associated expenses. Additionally, women who sacrificed their careers to support their spouses or raise children may feel disadvantaged during the division of assets if their earning potential is limited compared to their ex-spouse. How Your Divorce Attorney Will Support You Each divorce case is unique, and having an experienced attorney standing by you is vital. Whether you’re dividing assets, negotiating child custody, or managing other complex legal issues, the female divorce attorneys at Wilson Whitaker Rynell are here to protect the interests of you and your family. Our attorneys will take the time to understand your unique circumstances and empower you to make informed decisions that support your career, family and future. When you choose a female divorce attorney from Wilson Whitaker Rynell, you can trust that they will: Prioritize your family’s best interests. Negotiate with integrity, ensuring fairness and transparency. Clearly explain all your options and their potential outcomes. Help you create the future you want by offering trusted legal advice. Use efficient methods to minimize unnecessary costs and keep the process manageable. Navigating family law disputes requires a thorough understanding of Texas family law and strong advocacy. Women facing divorce or other family law issues are encouraged to seek an experienced family law attorney who can provide personalized guidance. A skilled lawyer can help craft a strategy that protects their rights and ensures a fair resolution. This includes representing their interests in court, negotiating settlements, and helping enforce orders such as child support or spousal maintenance.
Understanding Writs of Execution in Texas: A Layperson’s Guide If a court determines that someone owes money to another party, the debtor—referred to as the "judgment debtor"—typically has 30 days to pay off the debt. If the debt remains unpaid after this time, the creditor, or "judgment creditor," can take legal action to enforce the payment through a Writ of Execution . This legal process, governed by Texas law, enables creditors to collect what they are owed by seizing and selling the debtor’s non-exempt assets. What Is a Writ of Execution? Under Texas Rules of Civil Procedure 629 , a Writ of Execution is a court order that authorizes a sheriff or constable to seize the debtor’s property to satisfy the debt. This writ is an essential tool for creditors when voluntary repayment has not occurred. Once the writ is issued, it is handed over to a county constable or sheriff, who is required to act “without delay” in collecting the debtor’s real and personal property. The seized property is then sold, and the proceeds are used to pay off the debt. If multiple writs are filed against the same debtor, the assets are distributed in the order the writs were received. What Property Can Be Seized Under a Writ of Execution? Texas law is very specific about which types of property can and cannot be seized to satisfy a judgment. Exempt Property Certain assets are protected from seizure under Texas Property Code § 41.001. These include: The debtor’s homestead (primary residence) Wages earned from employment Professionally prescribed health aids Workers’ compensation benefits College savings plans Some insurance benefits Personal property valued up to $50,000 for individuals and $100,000 for families Unique to Texas, the law also protects items like family Bibles, two firearms, pets, and for rural residents, livestock (e.g., 12 head of cattle and 120 fowl). This extensive list reflects Texas's cultural heritage and values. Non-Exempt Property Assets that are generally not exempt include: Vacation homes Timeshares Pleasure boats Airplanes Jewelry exceeding certain value thresholds The specific procedures for seizing different types of property are detailed in Texas Rules of Civil Procedure 639 . Can a Writ of Execution Be Avoided? Judgment debtors have a few options to avoid the execution of a writ: Filing a Supersedeas Bond A supersedeas bond can temporarily halt enforcement of the writ. This bond, filed with the county clerk or justice of the peace, preserves the status quo while the debtor seeks further legal remedies. This option is governed by Texas Rules of Civil Procedure 634 . Challenging the Execution Debtors can file a claim for wrongful execution in situations such as: The debt has already been paid Exempt property is being seized The levy is excessive Additionally, courts take extra care to protect property classified as a homestead under Texas Property Code § 41.002(c) . When only one spouse is responsible for the debt, Texas Family Code § 3.202(a) and related provisions provide guidance on levying against community or separate property. The Role of County Officials in Executing the Writ Once the writ is issued, its enforcement falls on county officials, typically a sheriff or constable. These officials must act in accordance with Civ. Prac. & Rem. Code § 34.072 , which requires them to execute the writ and report back to the court. They must: Give proper notice of the sale of seized property Ensure the proceeds are appropriately delivered to the creditor Avoid overstepping legal boundaries, such as seizing exempt property Failing to execute the writ properly can result in serious consequences, where a sheriff’s refusal to levy on a property initially listed as exempt (but later deemed abandoned) led to court action and damages awarded to the creditor. Preventing Fraudulent Transfers One challenge creditors face is when debtors attempt to hide or transfer assets to avoid collection. To address this, Texas follows the Uniform Fraudulent Transfer Act under Tex. Bus. & Comm. Code § 24.001 et seq .. This act provides legal remedies to creditors when a debtor’s transfer of assets is deemed fraudulent. Effect of a Defendant's Death on Writs of Execution Under Civ. Prac. & Rem. Code § 34.072 , the death of a defendant after a writ of execution is issued halts execution proceedings. However, any lien acquired from the writ's levy is still enforceable by the county court when paying off the deceased's debts. Why Proper Execution Of The Writ Is Crucial The rules for filing and serving a Writ of Execution are strict and detailed. Missteps, such as filing the writ in the wrong county, failing to serve the proper parties, or missing key deadlines, can lead to delays or even render the writ ineffective. Both creditors and debtors must ensure compliance with these rules to avoid unnecessary complications. For creditors, failure to properly enforce the writ could mean losing the opportunity to collect on a judgment. For debtors, not responding appropriately to a writ could result in the loss of valuable assets, even those that might have been exempt.
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