Parents are entitled to decide and control who their kids will see and visit with.That includes aunts and uncles. Out-of-court conciliation efforts may be more appropriate under such circumstances because a judge is unlikely to grant any relief when the parents oppose contact sought by other family members, and may have her ruling reversed if she does enter an order to such effect.
When it comes to litigation, parents' rights generally trump those of other family members, not to mention neighbors and strangers; grandparents are given some legal rights, but also subject to significant conditions and restrictions, as explained in the following excerpt from a recent appellate opinion by Justice Angelini:
In this case, the trial court noted that it had no statutory authority to appoint the appellants as possessory conservators since it was appointing the mother as managing conservator and the father as possessory conservator. In addition, the trial court noted that it had done its best to get the parties to cooperate with each other in the best interest of J.O. Furthermore, the trial court observed that the communication between the parties had completely broken down, even with regard to J.O.'s medical needs.
"[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000); see also In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding).
The Texas Legislature has recognized this fundamental right by creating a presumption in favor of the parents being appointed as both managing conservator and possessory conservator. Tex. Fam. Code Ann. §§ 153.131, 153.191 (Vernon 2002). Encompassed within this well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. In re Pensom, 126 S.W.3d at 254.
Although the Legislature has provided a means by which a grandparent is permitted to request access to a child, no similar provision permits the aunt of a child to request such access. See Tex. Fam. Code Ann. § 153.432 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 255 (noting Legislature's intent to limit a court's jurisdiction over non-parental intrusion by allowing only grandparents to petition for access).
Even in a case in which a grandparent requests access, access is only available where "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." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 256 (noting trial court must accord significant weight to a fit parent's decision about the third parties with whom his or her child should associate).
Although appellants assert that the Family Code contains no provision limiting the right of an aunt or uncle to seek access, appellants fail to cite any authority that would permit a trial court to grant such access given the fundamental right J.O.'s mother had to determine with whom J.O. should associate. See In re Pensom, 126 S.W.3d at 254.
Based on the foregoing, the trial court did not err in denying appellants access. Appellants' fifth issue is overruled. ... The trial court's judgment is affirmed.
SOURCE: Appellate opinion in 04-07-00752-CV (San Antonio)
The parental presumption as stated in the Texas Family Code provides:
. . . unless the court finds that appointment of the parent or parents would not be in the best
interest of the child because the appointment would significantly impair the child’s physical health or
emotional development, a parent shall be appointed sole managing conservator or both parents
shall be appointed as joint managing conservators of the child. Tex. Fam. Code §153.131(a).
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