Parent vs. GrandParent Rights to Child Custody in Texas

A grandparent’s rights are generally subordinate to a parent’s. See Tex. Fam. Code § 153.433(2); see also Troxel, 530 U.S. at 64-65 (plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’” Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United States].” Id.

Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.” Tex. Fam. Code § 102.004(c). As Texas courts recently recognized, "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” See In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73
The Texas Constitution does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.

Section 153.433(2) of the Texas Family Code requires that a grandparent seeking court-ordered access overcome the presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the evidence that “denial . . . of access to the child would significantly impair the child’s physical health or emotional well‑being.” Tex. Fam. Code § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard because “‘[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts[,]’ even when the law is unsettled.” See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).