Can You Get Visitation Rights to Your Niece

[mandiemmagavin]

My question involves a child custody case from the State of: Texas

My niece is 2 years old and my family has been in her life since the day she was born, however my brother (her father) is in and out of her life. But even when he is not there, we are still there for her and would keep her sometimes 4 days a week and on the weekends. My brother and Kenzie's (my niece) mom often are in a relationship and then breaking up, they have always been like that. This last time they broke up August 28 of this year is the last time we have been able to see Kenzie! Just because her and him are arguing she is taking it out on us. We have not done anything but she will not respond to any calls or texts. I know poor Kenzie is asking about us, her and my two children are VERY close and they are constantly asking me when we will be able to see her again. I do not have contact with my brother, he is not allowed at my house but I know he is not getting Kenzie on his court ordered visitation times and I was wondering if there might be any way I could get her on those times? Or just any way to see her again. I just don't see how it is fair that she can just totally take her out of our lives. My Father lives with me and I would think he would have some sort of rights to see his granddaughter! Please help... Any advise is appreciated. Thanks

[Dogmatique]

My question involves a child custody case from the State of: Texas

My niece is 2 years old and my family has been in her life since the day she was born, however my brother (her father) is in and out of her life. But even when he is not there, we are still there for her and would keep her sometimes 4 days a week and on the weekends. My brother and Kenzie's (my niece) mom often are in a relationship and then breaking up, they have always been like that. This last time they broke up August 28 of this year is the last time we have been able to see Kenzie! Just because her and him are arguing she is taking it out on us. We have not done anything but she will not respond to any calls or texts. I know poor Kenzie is asking about us, her and my two children are VERY close and they are constantly asking me when we will be able to see her again. I do not have contact with my brother, he is not allowed at my house but I know he is not getting Kenzie on his court ordered visitation times and I was wondering if there might be any way I could get her on those times? Or just any way to see her again. I just don't see how it is fair that she can just totally take her out of our lives. My Father lives with me and I would think he would have some sort of rights to see his granddaughter! Please help... Any advise is appreciated. Thanks

Grandparents have no inherent rights in any state in the US.

Some states enable a third party to have standing to sue for visitation in limited circumstances. Typically though, the relatives are expected to visit during the parent's visitation time. A third party cannot "take over" the parent's visitation without the other parent's explicit consent.

Didn't you ask this on another forum...and receive the same response? Did you think the response would be different?

[mandiemmagavin]

I couldn't find the other forum to see if I had any response, but thanks anyway.

[Dogmatique]

I couldn't find the other forum to see if I had any response, but thanks anyway.

You're welcome.

I know it's not what you wanted to read. It has to be difficult for you. But the person who is responsible is your brother; he's more or less screwed his family out of getting to know his daughter.

The only thing you can do, realistically, is kiss up to Mom.

[christielyn]

As an Auntie myself to a 2 year old sweetheart, I can only imagine your sadness. Unfortunately the advice Dogmatique gave you is pretty spot on. These two are the parents and they can choose who can and can not see their child. The ONLY way to stay in this child's life is to mend your relationship with her parents. My heart hearts for you ... from one Auntie to another.

[Taxing Matters]

Under the Texas Family Code, the term “conservator” is used to refer to what in many states is called legal custody, the term “possession” refers to physical custody and “access” is used to refer to visitation. Under that Code, the law presumes that the parents act in the best interests of the child, including in the their decisions as to what other people may have access to the child. It is difficult to overcome that presumption when the parents are fit. The Code only refers to Aunts and Uncles in one situation: allowing them to seek conservatorship (custody) in the situation in which both parents of the child are dead. The Code does provide a very limited right to pursue access (visitation) of the child by a grandparent. Specifically, Texas Family Code section 153.433(a) states:

Sec. 153.433. POSSESSION OF OR ACCESS TO GRANDCHILD. (a) The court may order reasonable possession of or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;

(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and

(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:

(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;

(B) has been found by a court to be incompetent;

(C) is dead; or

(D) does not have actual or court-ordered possession of or access to the child.

Note in particular the requirements of paragraph (3). In order for your father to succeed in getting visitation rights to his grandchild, he must prove the grandchild’s father (his son) is either in jail or prison, has been determined incompetent by a court, is dead, or does not have actual or court ordered possession of (custody) or access to (visitation) of the child. You make no mention of your brother being in jail or prison or being found incompetent, and your post certainly suggests he’s alive. You also say the mother is not giving your brother his court ordered visitation, so your father cannot meet (D) either. Simply put, it does not appear that your grandfather would qualify to seek visitation here. You all can consult a Texas family law attorney to see if there are any options for you here, but it would seem a pretty difficult task given the very strong preference the state seems to have to give the parents the right to make the decision regarding who may have access to their children. I know that is not what you wanted to hear and I sympathize. Your best bet is probably to either get your brother to exercise his visitation and see your niece on his time or forge a better relationship with the mother such that she will allow some visitation.