Recently, one of our followers on the Coker, Robb & Cannon, Family Lawyers 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 circumstances exists.
- 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 the child.
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.