It has always been my belief that it “takes a village” to raise children and grandchildren. To me, that means that different perspectives, skills or interests, lifestyles, or cultures of any relative is a valuable addition to a child’s outlook on the world. However, in the past 18 months we have had an alarming number of cases where children of our clients were not allowing grandparents to see their grandchildren because of differing opinions. For those of us who have been blessed with grandchildren – the joy is immeasurable. Being separated from your grandchildren is devastating.
In a family law – divorce practice, there is a concept known as “Parental Alienation” syndrome, a term made popular in the 1980s by child psychiatrist Dr. Richard A. Gardner. Parental alienation occurs when one parent attempts to turn the couple’s children against the other parent. A parent who is angry at the spouse or ex-spouse accomplishes this estrangement by painting a negative picture of the other parent via deprecating comments, blame, and false accusations shared with the children. They may also try to deprive the other parent from spending time with the children.
In an estate planning practice, we had not really seen this. However, in the recent cases where children of our clients were not allowing grandparents to see their grandchildren, we have begun to use the term “grandparental alienation”. When grandparental alienation occurs, we get a call and the question – can we enforce our rights as a grandparent under Texas law?
Unfortunately, Texas deals with this only in very limited circumstances. Our statute is found in the family code in Sec. 153.432 and Sec. 153.433 and permits or gives a grandparent rights of visitation enforceable by a court when:
- The parents are divorced and the grandparent’s child-parent does not have custody.
- The parent abused or neglected the child.
- The parent has been incarcerated, found incompetent, or died.
- A court-order terminated the parent-child relationship of the grandparent’s child.
- The child has lived with the grandparent for at least six months.
Under current Texas law, the parent has the superior right, including the right to decide who does and does not have access to their child. Although our clients have often stated that they would like to pursue their rights, without meeting any of the criteria above, we recommend trying to improve the relationship with the grandchild’s parent, which often involves giving the situation time, rather than pursuing the issue through the court. This may be a grandparent’s only option. Many of us grandparents, however, do not have the luxury of extended time. And the grandchildren grow up so fast!
During this time of alienation, many of our clients will take steps in their estate planning to protect their grandchild(ren) and “skip” the alienated parent in their Will or trust planning. Although I have often told clients that treating children differently is a legacy you will leave for the rest of the child’s life (you are gone, so you don’t care) – I have had to embrace this solution for grandparental alienation.