Parents have the fundamental right and responsibility to direct the care, control, and upbringing of their children. Sadly, however, current law throws due process aside and ignores evidentiary standards, which tears families apart and harms children and parents alike. This very real injustice stems from the 1995 Family Code amendment, known as the “Grandparent Access Statute,” which allows in-laws to sue single parents for access to possession of that parent’s children. The law was amended again in 2005 to allow grandparents to sue for actual possession, and created very low standards of required evidence–inconsistent with other parts of the Family Code.
Although the original intention may have been noble (trying to protect grandparents being wrongly kept apart from their grandchildren), the consequences are destroying Texas families and undermining the fundamental right of parents to direct the education and upbringing of their children. This must change. That’s why THSC is supporting the Texas Parental Rights Restoration Act, or TPRRA (HB 524 and SB 414) to restore justice to the system and require proper due process and evidentiary requirements.
Parents Whose Children Were Taken Away
Recent Updates on the TPRRA
April 15, 2015 Blog Post: Relief for Single Parent Families Pending in Senate Committee
March 2, 2015 Blog Post Regarding TPRRA: Loophole Allows Drastic Removal of Children
Videos: See the Devastating, Yet Real Effects of the Grandparent Access Statute
I. History of “Grandparent Access Statutes”
Prior to 1965, grandparent access laws did not exist. Today, all 50 states have had some type of statutory scheme that allows in-laws 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, and these are not lawsuits for custody or to terminate parental rights. Rather, grandparent access lawsuits are attempts to invade a family, usually in circumstances where the in-laws refuse to abide a parent’s wishes regarding the upbringing of those children.
Since the U.S. Supreme Court ruled in a June 2000 case involving a grandparent access dispute, Texas courts have seen a significant increase in these 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.
II. Abuse of the Law and Exploitation of Loopholes
Abuse of the existing statute has undermined the intent of the law by allowing in-laws to take children from fit parents, despite failing to meet the legal evidentiary standard required by the statute. Additionally, a loophole has caused fit, single parents (parents who provide for the needs of the child and are not neglectful or abusive) to lose their children for years before the case is ever heard in court. How? The indefinite “temporary order.”
The temporary order, which can be granted by the judge, transfers control of the grandchildren into the hands of the in-laws. Once the temporary order is given, in-laws often prolong the litigation through tactics that slowly bankrupt the child’s parent, allowing vindictive, possessive, and even abusive grandparents to legally keep their grandchildren for years before a court even hears any evidence on the issue.
In some cases, the high financial burdens placed on parents as a result of harassing in-laws or frivolous claims not only damage the finances of the parent, but endanger the well-being of the family as a whole, and lead to bankruptcy. Without definitive end dates under the so-called “temporary” orders, lawsuits can extend for years, until the single parent acquiesces due to a lack of money.
What’s more, the law specifically discriminates against single parents. As the law is written, only a parent who is single due to a death, divorce, or incarceration is able to be sued by his or her in-laws, resulting in the devastation of many single parents–most often women.
III. Motives Behind Access/Possession Lawsuits
In-laws 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 parent establishes for those visits. THSC first became aware of grandparent access litigation in a case where 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 some cases, the in-laws simply claimed that home schooling was “not in the best interest of the child” and that the parent was not socializing her child adequately, resulting in judges placing the child with the grandparents under a “temporary order.” As time goes on, other grounds are sought to take custody of the child away from the parent completely.
Examples of the Devastation
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!”
This story is not isolated. As this petition to pass the TPRRA shows, many other families have also been victims of this legal abuse. Watch the video showing Chassidie’s nightmare and other similar horror stories.
What can be done to remedy these numerous injustices?
I. What Does the TPRRA Do?
The TPRRA, also known as House Bill 524 (being filed by Cindy Burkett) and Senate Bill 414 (being filed by Donna Campbell), amends 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 a 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.
II. How Does the TPRRA Fix the Problem?
There are several important ways that the TPRRA (or HB 524 & SB 414) remedies the injustices caused by the status quo.
1. Supports Existing Case Law
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. HB 524 and SB 414 reflect decades of U.S. Supreme Court case law declaring parental rights as perhaps the oldest fundamental liberty interest first recognized under the Constitution.
2. Ends Meritless Victories
Without a timeline to determine if the accusations are even valid, cases devolve into a monetary standoff until one of the sides (usually the single parent) is unable to fight the legal battle, and her child is torn from her arms. HB 524 and SB 414 end this quandary by requiring a judge to hold an evidentiary hearing within 45 days of the initial filing of the suit.
3. Ends Financial Devastation
Both parties often suffer devastating financial consequences because of excessively lengthy litigation. Often, what would have been a child’s college fund has now been spent in legal fees by both parties. Not only are parents and grandparents hurt, but ultimately the cost of the case is passed down to the children through lost opportunities and resources. HB 524 and SB 414 remedy this burden on the children by requiring that the in-laws cover the legal fees for the parent if the case is found to be frivolous or intended to harass a family.
4. Restores the Law to its Original Intent
The TPPRA would ensure that the proper intent of the Grandparent Access Statute is upheld, by only allowing grandparents to obtain visitation to a grandchild if it is proven with sufficient evidence that denying such access or possession would significantly harm the emotional or physical well-being of that child.
How You Can Help Pass the TPRRA!
1. Sign the petition!
Your voice is powerful and, with our combined voices, the parents of Texas can make their concerns known to the Texas Legislatures! Sign the petition started by a single parent who had her daughter taken away from her for years, due to the failure of the current law.
2. Call the Committees!
Before being voted on by the entire House and Senate, the bill must pass out of committees in both houses, meaning that the fate of numerous families lies in the hands of less than a dozen Representatives and Senators. The Senate version of the bill, SB 414, will be having a hearing within the next several weeks, so click here to view the list of the committee members, and then call them!When calling, be sure to advise the staff that you are calling in support of Senate Bill 414, which is in the State Affairs Committee right now. Ask to speak with the person who handles SB 414, share that you support SB 414 and that you believe it is very important to Texas families and children, state why you believe SB 414 is important, and then thank them for their time.
3. Share the Truth!
If everyone you know signs the petition and calls the committee members, we can make a huge difference for families all over the state, and you can be a part of helping to Keep Texas Families Free! Share this page on Facebook and Twitter, and be sure to share the petition as well!
1. What About Bad Parents?
If there is a case where the grandparents need to take the children away from bad parents, there is already a venue for that.
- The Grandparent Access Statute that TPRRA amends exclusively targets fit parents.
- If a parent is unfit, and the grandparent is filing for access or possession for that reason, a different section of the Family Code (including Chapters 102 and 161) applies. Grandparents may file for access/possession for many different reasons.
- 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, which 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.
2. Is 45 Days Long Enough?
When CPS takes custody of a child, an initial hearing must be 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.
3. Don’t Grandparents Have 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.”
- Ultimately, a fit parent has a fundamental right to determine whether 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.”
- 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 Section 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.
4. What if the Parents Set Unreasonable Visitation Requirements?
Both Texas law and the U.S. Supreme Court grant fit parents wide latitude to determine what visitation limitations are “reasonable.” 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.”It is ultimately the parent’s decision to determine what visitation requirements will be best for his or her own child. The 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.
5. Will This Cause Grandparents to Seek Conservatorship Instead of Access or Possession?
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, the 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 Section 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.”
6. Will Preventing the Consolidation of Cases Increase the Cost of Litigation?
The 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.
7. Has the TPRRA Been Filed Before?
Yes. The 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.
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 Section 161.001.