In 1995 the Texas legislature amended the Family Code to allow grandparents to sue parents, or others who had custody, for access to their grandchildren. This type of legislation has been adopted in virtually every state in the nation, driven by powerful senior citizen groups. The purpose was to allow a means to have access for grandparents who were being kept from their grandchildren. This change has had unintended consequences that are destroying Texas families and undermining the fundamental right of parents to direct the education and upbringing of their children. The law was amended again in 2005 to allow grandparents to sue for actual possession, in addition to mere access. The statute sets a lower standard of evidence required for access or possession than is required under other parts of the Family Code for custody. That must change!
How do we restore parental rights in this area and stop this abuse? We must change the law!
The first step in standing up for families and changing this law is to make Texas home schoolers and all parents aware of the problem. THSC Association considers the Texas Parental Rights Restoration Act (TPRRA) the solution and is calling for its support in the next legislative session. Please spread the following information!
Why the Texas Parental Rights Restoration Act (TPRRA) is needed
All fifty states have had some type of statutory scheme that allows grandparents to sue families for court-ordered access or possession of children, even when the parents – who are perfectly fit – object. Grandparent access disputes involve litigation that can sometimes have no end.
These are not lawsuits for custody or to terminate parental rights. Grandparent access lawsuits are attempts to invade a family, usually in circumstances where grandparents refuse to abide a parent’s wishes regarding the upbringing of the parent’s children.
In June of 2000 the U.S. Supreme Court ruled in a case involving a grandparent access dispute. Since that time Texas courts have seen a large number of this type of cases. Just like King Solomon, wise judges recognize that the grief of one parent cannot be assuaged by permitting the grieving parent to intrude upon another parent’s family – neither are the needs of children best served by such actions.
Talking Points in Favor of TPRRA (HB 2547)
Relating to a suit for access or possession of a child by a grandparent
HB2547 amends what has previously been known as the Texas Grandparent access Statute by
(among other things):
- Requiring judges to make specific findings when ordering access or possession
- Preventing litigants from “ganging up” on parents by consolidating cases
- Requiring that parental rights are honored in both original and modification suits
- Raising the standard of evidence from “preponderance” to “clear and convincing” when overruling the rights of parent in such cases
- Protecting families from financial ruin by requiring the recovery of their legal fees in frivolous or harassing cases
- Requiring courts to hold a hearing on the merits of the case within 45 days and not allowing any temporary orders until that time. This would effectively end needless and prolonged litigation
Families are being devastated financially, even bankrupted, defending these suits. Not only are parents and grandparents financially hurt, but ultimately children as well.
1. Existing Case Law
HB2547 reflects decades of U.S. Supreme Court case law declaring parental rights are perhaps the oldest fundamental liberty interest first recognized under the Constitution.
In June 2000 the U.S. Supreme Court reiterated the importance of protecting parental rights in Troxel v. Granville, a landmark case involving a parent sued by grandparents.
2. Ending Meritless Victories
Under current statute, when a grandparent files suit the judge does not have to order an evidentiary court hearing within any time frame. In practical terms, this means that both parents and grandparents may be locked in unending litigation, with no definite ending date.
The by-product is that families are often locked into a “last dollar standing” battle, even though the initial case brought by the grandparents has no merit. Since the law doesn’t require a specific timeline for an evidentiary hearing to determine if the accusations are even valid, the case devolves into a monetary standoff until one of the sides acquiesces for financial reasons.
HB 2547 ends this quandary by requiring a judge to hold an evidentiary hearing within 45 days of the initial filing of the suit.
3. Ending Financial Devastation
Due to the reasons listed above, both parties suffer devastating financial consequences. Often, what would have been a child’s college fund has now been spent in legal fees by both parties.
Texas Parental Rights Restoration Act (TPRRA) Summary
HB 2547 by Rep. Burkett and SB 1194 by Sen. Campbell
- Summary of the Grandparent Access Statute
The Grandparent Access Statute pertains to instances where grandparents desire to visit a grandchild over the objections of the child’s parent. The cases are often the result of grandparents’ disagreement with a fit parent’s legitimate parenting decision.
Before 1965 no state gave grandparents the right to have access or possession of their grandchildren over the objections of the children’s fit parent. Since then Texas and other states have adopted Grandparent Access Statutes, which allow grandparents to petition the court for access or for possession of the child. The Texas statute, enacted in the early 1990s, requires the grandparent to prove by a “preponderance of the evidence” that a denial of access or possession would significantly impair the child’s physical health or emotional well-being in order for the court to overcome the fundamental, constitutional right of the parent. (http://www.jstor.org/discover/10.2307/585451?uid=3739920&uid=2&uid=4&uid=3739256&sid=21101696992741)
- Abuse of the Grandparent Access Statute
Abuse of this statute has undermined the intent of the law by allowing grandparents to take children from fit parents, despite failing to meet the legal evidentiary standard required by the statute.
A loophole has caused fit, single parents to lose their children for years before the case is ever heard in court. A fit parent is one who provides for the needs of the child and is not neglectful or abusive.
The loophole allows grandparents to obtain a temporary order which transfers control of the grandchildren into the hands of the grandparents. Once the temporary order is attained, grandparents often prolong the litigation through tactics which slowly bankrupt the grandchild’s parent. One legal tactic is to repeatedly gain extensions of time. In this way, vindictive, possessive, and even abusive grandparents can legally keep their grandchildren for years prior to a court evidentiary hearing.
- Reasons Suits Filed for Possession/Access
Grandparents often file litigation because they strongly disagree with a parent’s parenting choices, they want to spend more time with their grandkids than the parent will allow, or they disagree with the parameters that the parents establish for those visits.
The Texas Home School Coalition first became aware of grandparent access cases through litigation in which a parent lost his children through the abuse of this statute because the grandparents so strongly disagreed with the parent’s decision to home school his children.
In certain grandparent access cases, the grandparents simply claimed that home schooling was “not in the best interest of the child” and that the parent was not socializing her child adequately. Judges sometimes place the child with the grandparents on the basis of “temporary orders,” and once the child has been removed from her parent, every legal maneuver and effort is then made to prevent the parent from regaining her child. As time goes on, other grounds are sought to gain full custody of the child.
- Fit Parents
The Grandparent Access Statute only applies to fit, single parents. While questions are often raised regarding grandparents who rescue children from abusive situations, those actions are taken under authority of a section of the Family Code that relates to abuse and neglect. By contrast, the Grandparent Access Statute pertains to the question of when and how often grandparents should be allowed to see their grandchildren in fit, single-parent families. It does not deal with grandparents removing children from the homes of abusive parents.
Legally, fit parents are presumed to act in the best interests of their children. In the most recent case on parental rights, the U.S. Supreme Court ruled in 2000 that: “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests.” (Troxel v Granville) (http://supreme.justia.com/cases/federal/us/530/57/case.html)
Texas law presumes that fit parents act in the best interests of their children, but legal loopholes allow courts to remove children through temporary orders without first holding an evidentiary hearing to overcome this presumption.
- Parental Rights
Since the law pertains only to fit parents, the matter is a question of parental rights. The loophole in the Grandparent Access Statute allows a grandparent to undermine the legitimate authority of fit single parents to raise their children and to decide how much time their children should spend with their grandparents.
- Overview of Commonly Used Terms
Visitation: Visitation is a common term that refers to Possession or Access.
Access/Possession: Access and possession are often used synonymously with visitation. Access more often refers to telephone calls or e-mail communication. Possession applies in situations where the grandparent is given possession of a child over a weekend, or certain hours of particular days.
Custody: Custody is a commonly used term that refers to conservatorship.
Conservatorship: An individual who is granted conservatorship has been granted complete possession of a child, full responsibility for the child, and the right to direct the child’s care, health, education, and upbringing. For an exhaustive list of rights exclusive to conservators, see Family Code Section 153.132.
Fit Parent: A parent is assumed to be fit unless his or her conservatorship of the child is shown not to be in the best interest of the child because it significantly impairs the child’s physical health or emotional development. A parent could be deemed unfit in situations such as abandoning the child without expressing intent to return or deliberately placing the child in dangerous situations or surroundings. For an exhaustive list of what would constitute an unfit parent, see Family Code Sec. 161.001.
II Problems with the Current Statute
- Frivolous and Prolonged Lawsuits
As currently written, the Grandparent Access Statute does not require a judge to order an evidentiary court hearing within any specific time frame. This loophole has led to legal battles in which parents and grandparents are locked in unending litigation without a definite resolution date. Single parents are forced to fight seemingly unending litigation.
- Financial Devastation
Since the law does not require a specific timeline for an evidentiary hearing to determine if the grandparents meet the standard required under the statute, cases often devolve into a monetary standoff until one of the sides acquiesces for financial reasons. Many families have been locked into a “last dollar standing” battle, even though the initial case brought by the grandparents may have no merit. Both parties suffer devastating financial consequences. Some families face bankruptcy. Other families see their life savings depleted by prolonged litigation, and relationships are poisoned and destroyed due to years of contentious litigation.
- Discrimination against Single Parents
As the law is written, only a parent who is single due to a death, divorce, or incarceration is liable to such litigation. This loophole results in the devastation of many single parents, most often women. In two-parent families, grandparents can be granted conservatorship of a child if the child’s parents are shown to be unfit. In a single-parent family, however, a child can be taken from her parent through temporary orders without the grandparent having to bear that burden of proof. Many grandparents have exploited this loophole in order to take children from fit parents.
Mike & Chassidie Russell
In 2007 Chassidie Russell found out what it meant to be accused of “Grandparent Alienation.” When the step-grandparents decided they did not have enough time with their step-grandchild, Caitlyn, they took matters into their own hands. Although Caitlyn did not feel comfortable around her grandparents, the judge issued a “temporary” order under the Grandparent Access Statute and allowed the step-grandparents to take Chassidie’s four year-old daughter home with them while Chassidie was forced to stay in the courtroom. Chassidie did not see her child again for six weeks. Due to their wealth, the step-grandparents were able to drag the court case out for almost four years, while the Russells went bankrupt. When Caitlyn was finally reunited with her mother, her first words were, “I’m free!”
III. Solution: The Texas Parental Rights Restoration Act (TPRRA)
- End Frivolous and Prolonged Lawsuits
The TPRRA will revise the current statute so that an access/possession battle between parents and grandparents is a discussion that pertains to what is best for the child instead of who can spend the most money in court. TPRRA would accomplish this by:
- Prohibiting temporary orders in these cases and requiring an evidentiary hearing within 45 days of the initial filing of the suit.
- Raising the standard of evidence from “preponderance” to “clear and convincing,” which is the standard used in the Texas Family Code when parental rights of unfit parents are terminated due to abuse and/or neglect.
- Ending Financial Devastation
TPRRA prevents financial devastation of families by prohibiting lawsuits from being “extended” into lengthy and expensive battles and by requiring the recovery of their legal fees in frivolous or harassing cases. This will also have the added benefit of saving families from the destruction of relationships that often occurs due to years of contentious litigation.
- Limiting Single-Parent Discrimination
TPPRA would ensure that the proper intent of the Grandparent Access Statute is upheld; it would only allow grandparents to obtain visitation to a grandchild if denying such access/possession would significantly harm the emotional or physical well-being of that child.
IV. Provisions of the Bill
TPRRA amends what has previously been known as the Texas Grandparent Access Statute by (among other things):
- Requiring judges to make specific findings when ordering access or possession.
- Preventing litigants from “ganging up” on parents by consolidating cases.
- Requiring that parental rights be honored in both original and modification suits.
- Raising the standard of evidence from “preponderance” to “clear and convincing” when overruling the rights of fit parent in such cases.
- Protecting families from financial ruin by requiring the recovery of their legal fees in frivolous or harassing cases.
- Requiring courts to hold a hearing on the merits of the case within 45 days and not allowing any temporary orders until that time. This would effectively end needless and prolonged litigation.
Texas Parental Rights Restoration Act (TPRRA) FAQ
HB 2547 by Rep. Burkett and SB 1194 by Sen. Campbell
I. What about bad parents?
- The Grandparent Access Statute that TPRRA amends deals exclusively with fit parents.
- Grandparents may file for access/possession for many different reasons. If they are filing because of situations regarding unfit parents, their case falls under a different section of the Family Code, including Family Code Chapters 102 and 161.
- If the parents were abusive and there was potential for significant harm to the child, legally the grandparents should obtain a restraining order against the parents. In such cases, the grandparents would file for conservatorship rather than merely filing for access. Filing for conservatorship falls under a completely separate section of Texas Family Code. See Family Code Sections 102.003 and 102.004.
- If a child is being abused, the law currently requires those who are aware of the situation, such as the grandparents, to report the parents to CPS.
II. Is 45 days long enough?
- When CPS takes custody of a child, an initial hearing must he held within 14 days. If 14 days is deemed sufficient when dealing with actual issues of custody, which are much more involved and intricate than access/possession cases, 45 days ought to serve as an ample time frame for suits brought against parents dealing with issues of access/possession.
III. Don’t grandparents deserve the right to see their grandchildren?
- Parents have a fundamental right to direct the care, control, and upbringing of their own children.
That right allows parents to determine how much interaction between grandparent and grandchild would be in the best interest of the child. In Troxel v Granville, the U.S. Supreme Court ruled that so long as a parent is fit, “there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” (http://supreme.justia.com/cases/federal/us/530/57/case.html)
Ultimately, a fit parent has a fundamental right to determine whether or not it is in the best interest of his or her child to see his or her grandparents. The U.S. Supreme Court also iterated that it was presumed that “a fit parent will act in the best interest of his or her child.” (http://supreme.justia.com/cases/federal/us/530/57/case.html)
- Under the Texas Family Code, parents are given default conservatorship of their children, because it is assumed that parents act in the best interest of their children. Family Code Sec. 153.131.
- Most parents desire for their children to spend time with their grandparents. However, in certain instances, single parents have good reason to limit interaction with the grandparents or to keep their children from them. For example, some grandparents are vindictive, possessive, and even abusive.
IV: What if the parents are setting unreasonable visitation requirements?
- Both Texas law and the U.S. Supreme Court grant fit parents wide latitude to determine what visitation limitations are “unreasonable.” In Troxel v. Granville, the Supreme Court noted, “In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.” (http://supreme.justia.com/cases/federal/us/530/57/case.html)
- It is the parent’s decision to determine what visitation requirements will be best for his or her own child. TPRRA would ensure that the parenting decisions of fit, single parents are only overridden in cases where a denial of access or possession would impair the child’s physical health or emotional well-being.
V: Will this bill make it easier for grandparents to be appointed as conservators than to be given access or possession rights?
- In short, no. Although the standards of evidence may become higher in cases of access and possession than in cases of conservatorship, the standard of proof remains far greater in a suit for conservatorship. If passed, TPRRA would raise the standard of evidence to “clear and convincing” in a suit for access and possession, while a suit for conservatorship would remain a “preponderance of the evidence.” The determining factor is not how much evidence is required to meet the standard of evidence but rather what kind of evidence is required to meet the standard of proof.
- A suit for access requires a demonstration that the child’s physical health or emotional well-being would be “significantly impaired” by not seeing the grandparent. A suit for conservatorship requires proof that the child will receive “significant impairment” by being with the parent. Regardless of the quantitative standards of evidence, it will always be harder to prove that the child will be impaired by seeing the parent than by not seeing the grandparent. Texas law presumes that being with a parent is in the best interest of the child. (Family Code Sec. 153.131) To reiterate, the U.S. Supreme Court ruled in Troxel that it was assumed “a fit parent will act in the best interest of his or her child.” (http://supreme.justia.com/cases/federal/us/530/57/case.html)
VI: Will preventing the consolidation of cases increase the cost of litigation?
- TPRRA will reduce the number of frivolous lawsuits being filed by placing the burden of proof, as well as the costs of litigation in unmerited cases, more heavily on the grandparent. This will reduce the number of cases that attorneys are willing to file. Additionally, instead of cases dragging out for multiple years, the majority of them will be over within 45 days. This will result in a net reduction of the cost of litigation.
VII: Has TPRRA been filed before?
- TPRRA was filed as HB 2557 in the Texas House during the 82nd Legislature by Rep. Fred Brown. He was joined by joint authors Representatives Burkett, Phillips, Madden, and Raymond. The bill was passed through Calendars late in the session, and the clock expired before the bill was heard.