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Serving the Child's Best Interests
Under Indiana Code Section 31-17-5, "Grandparent's Visitation," courts may grant visitation rights to a child's grandparents only in certain circumstances. Using "the best interests of the child" as the determining factor, Indiana courts will review the specific facts in a custody petition and determine if the child's best interests will be served by allowing the grandparents visitation rights. The Indiana courts will review the grandparent's petition to make sure she has attempted to have a meaningful relationship with the child. The court may consider a parent's wishes, believing that parental preference ensures the best interests of the child will be served. The Indiana courts will interview the grandchild within judges' chambers to ensure his best interests will be met. The court has discretion in allowing attorneys into the chambers during this interview with the child. However, Indiana courts will only grant a grandparent's visitation petition in specific circumstances.
When Children's Parent is Deceased
If the child's parent is deceased, then the Indiana court may consider the totality of the circumstances, including the current relationship between all parties. The court will still consider the best interests of the grandchild, even if the parent is deceased, and use the best interest as a critical factor in visitation orders.
When Children's Parents are Divorced
If the grandchild's parent is not deceased, then the court may allow visitation if the parents are divorced or the child was not legitimized and born outside of wedlock. However, most likely for public policy reasons to encourage paternal establishment, the Indiana courts will not grant visitation to paternal grandparents if their son has not established legal paternity. Therefore, if paternity has not been established, then the court most likely will not recognize the paternal grandparent's request for petition.
Grandparents Must File Petition
The grandparent seeking visitation must follow the Indiana Code's procedural rules and petition the court for visitation. The petition is typically filed in the child's residential county, unless the parents are divorced, and the divorce was filed in a different Indiana venue. Then, you may file in the county where the divorce decree was filed. Since family laws may change frequently, you should not use this information as a substitute for competent legal advice, and you should contact an Indiana family law attorney.
Grandparents in Texas do not have an automatic claim to their grandchildren. However, the Texas Family Code now includes statutes permitting grandparents to file a petition with the court requesting visitation with or custody of a grandchild. The grandparents are permitted to file a petition if their son or daughter is not an active participant in the child’s life for one of the following reasons: The child’s parent is in jail and has been incarcerated for at least three months; the child’s parent is deceased; the child’s parent was declared incompetent by a judge; or the child’s parent does not have custody of the child.
If a grandparent is unable to see a grandchild because the child’s parent is not involved in the child’s life, the grandparent can file a petition requesting access or visitation. If the child’s other parent objects to the grandparent’s involvement in the child’s life, a Texas judge can order specific visitation periods.
Grandparents are also entitled to file for custody of a grandchild. If the grandchild has been living with the grandparents for at least six months, they may be granted custody. Also, if the grandparents believe that the child’s parent is physically or emotionally harming the child, they may file a petition for custody.
Burden of Proof
Because providing a stable environment for the child is always the goal, Texas courts have set a very high burden of proof that must be met before grandparents will be granted custody. Along with the petition, grandparents must submit their allegations against the child’s parent, with supporting evidence. Judges will only award custody to the child’s grandparents if doing so will be in the best interests of that child. The grandparents must successfully prove that an emergency situation has developed that has endangered the welfare of the child and the grandparents' home would be a better environment.
The Texas Family Code limits the grandparents’ visitation and custody rights. If both biological parents have had their parental rights terminated, have relinquished their parental rights or are deceased, the grandparents have no right to request visitation with or custody of their grandchild. Also, if the child has been adopted out of the biological family, or adoption is pending, the grandparents have no legal claim.