Recently, one of our followers on the
CokerLegal Facebook page asked if we could repost one of our
previous blog posts about Grandparents' rights in Texas when the grandchildren's parents divorce. Since that post was originally
published, the laws have changed, so we have updated the information accordingly.
It pretty much goes without saying that everything behind grandparents’
rights can be incredibly emotional. When grandparents have to seek legal
intervention to just see their grandchildren, emotions abound on all sides
of the spectrum with the grandparents, the parents, and the children involved.
When parents feel it is necessary to deny access to the grandparents,
emotions also run high. Texas always wants to do what is best for the
children, and except for specific circumstances, the state will always
lean toward the children being with one parent over grandparents. Further,
state and federal law strongly favors a fit parent’s right to choose
whether the child is around the grandparents or not.
This isn’t to say that grandparents don’t have a case; only a
family law attorney can tell you for sure if you have a case or not. However, before you rush
off to an attorney’s office with your demands, be sure to look over
Texas’ stipulations for grandparents’ rights as described below.
A managing conservatorship often means “custody,” but it could
also mean that the grandparents have the right to make decisions regarding
the child’s upbringing, such as what school to attend and where
the child resides. A grandparent can seek a managing conservatorship by
actively filing a lawsuit or by intervening in an on-going lawsuit (such
as a divorce or a modification) ONLY if at least one of the following
- The grandparent has had actual care, control, and possession (custody)
of the child for at least six months and the end of the possession was
less than 90 days prior to the filing of the original lawsuit.
- Both the child and the child’s parent, guardian, or managing conservator
have lived with the grandparent for at least six months, and this ended
no sooner than 90 days prior to the filing of the original lawsuit.
- Where the child currently lives presents either an emotional or physical
danger to the child.
- Both of the child’s parents, the surviving parent, or the managing
conservator have either filed a lawsuit for the grandparent to become
the child’s managing conservator or they have agreed to it.
If any of these four situations exist, then there may be a case for the
grandparent to seek custody.
A possessory conservatorship is NOT like custody; instead, it’s more
like visitation, which can include overnight visits. In addition, a possessory
conservator may also be granted rights to be involved with the child’s
upbringing. Unlike the managing conservatorship, there is one way to file
for a possessory conservatorship–an intervention in an ongoing lawsuit.
In the following situations, a grandparent can file for possessory conservatorship
if there is an ongoing lawsuit regarding the welfare and custody of the
child. Please note that both circumstances must be met in order for the
grandparent to intervene.
- The grandparent has had significant past contact with the child; and
- The grandparent can provide satisfactory proof to the court that appointing
one or both parents as the child’s managing conservators would present
a significant emotional or physical danger to the child.
For grandparents just seeking visitation with the child, they may do so
by either filing an original suit or intervening in a current lawsuit.
However, all three of the following circumstances must exist, PLUS one
of the circumstances listed below the requirements.
- At the time the original lawsuit was filed, at least one biological or
adopted parent of the child has not terminated their parent’s rights; and
- The grandparent can prove that denying visitation will greatly impair the
child’s physical or emotional health (requires a professional to
confirm this); and
- The grandparent requesting visitation is a biological parent to the biological
parent of the child in question; and
- The grandparent can prove that the parent intends to completely deny the
grandparent from having possession of or access to the child.
Along with these three prerequisites, one of the following situations must
also be present.
- The parent has been incarcerated 90 days before the filing of the lawsuit.
- A separate lawsuit has found the parent to be incompetent.
- The parent is dead.
- The parent does not have actual OR court-ordered custody of or access to
As you can see, these circumstances greatly limit which grandparents can
file suit just for visitation.
Now, this is just a down and dirty explanation of what Texas requires for
grandparents to try to assert their rights to see or obtain custody of
their grandchildren. In no way does this cover every single plausible
situation that you may find yourself in. Just as we said earlier that
you shouldn’t rush off to an attorney’s office to demand your
rights without learning a bit first, we also urge you not to give up just
because you read this explanation of grandparents’ rights. These
cases are very fact specific and the potential for success also varies
great from Court to Court and Judge to Judge.
Talk to an attorney familiar with the Courts in your area about your unique situation, and
remember to keep your mind open. Just because you may not qualify for
one of these situations does not mean you can’t help your grandchild
through legal procedures.