• Robert Tsai

What does significant impairment mean and how is it used in family law cases?

Updated: Jun 19

Certain suits affecting children require the moving party to prove a child’s physical health or emotional development will be “significantly impaired” if what they are asking for is not granted. Some suits that require this high burden to be met include seeking temporary orders to change which conservator has the right to designate the primary residence, modifying orders within one year of a prior order, filing based on a standing statute that governs relatives, and filing for grandparents to have access to a grandchild.

When seeking temporary orders to modify which conservator has the exclusive right to designate a child’s primary residence, a party’s success depends on whether they can prove the modification is in the best interest of the child and without this modification, a child’s physical health or emotional development would be significantly impaired. A party can meet this burden by submitting an affidavit asserting the specific facts that support the allegation, so the court can make a determination. The same is true when a party seeks to change the designation of the primary conservator within one year of the most recent order. In both instances, the supporting facts within the affidavit must come from the moving party’s personal knowledge or have sufficient evidence to present to the court.

Where a relative can prove that a child’s present circumstances will significantly impair the child’s physical health or emotional development, that relative may have standing to bring a suit for the child’s well-being. For example, significant impairment has been found and a relative has been granted conservatorship where a parent showed favoritism to other children and sexual abuse was suspected, where a parent provided poor living conditions, inadequate schooling, and failed to provide necessary medical care, where a parent was incarcerated for most of a child’s life and was later absent and failed to exercise rights to visit the child. On the other hand, significant impairment has not been found by the court where possible harm to a child was speculative or where the parent was a past drug user, unemployed, lacked a vehicle, and didn’t own a residence. Needless to say, significant impairment in cases filed by a relative are very fact specific and determined on a case-by-case basis.

A grandparent has standing to bring a suit for custody of a grandchild where a parent consents or where placing the child with a parent would significantly impair the child’s physical health or emotional development. Additionally, a grandparent has standing to request visitation with a child. A grandparent may obtain visitation rights if the grandparent can prove that denial of this right would significantly impair the child’s health or emotional well-being. Again, a finding of significant impairment depends on the facts of each case. A court will not likely grant visitation rights to a grandparent where children would simply benefit from contact with a grandparent because denial of this right would not necessarily result in significant harm. However, a court will likely grant visitation rights to a grandparent where an expert will testify that denial of this right will result in the child’s emotional impairment.

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