Perhaps the most common situation when relatives (who are not the parents) seek custody of a child is one that involves one or more of the child's grandparents. It is an unfortunate reality that some grandparents find themselves in the position of providing for the daily needs of their grandchildren, either because the child's parents cannot, or will not, do so.
When Can a Grandparent Seek Child Custody?
Texas law provides that a grandparent may file a lawsuit for custody, known under Texas law as conservatorship, at any time if that grandparent falls within one or more of the following categories of persons:
- A custodian or person having the right of visitation with, or access to the child appointed by an order of a court of another state or country
- A guardian of the person, or of the estate, of the child
- A person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than ninety (90) days preceding the date of the filing of the petition
- A person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment or to whom consent to adoption has been given in writing in accordance with Texas law
- A person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than ninety (90) days preceding the date of the filing of the petition, if the child's guardian, managing conservator, or parent is deceased at the time the petition is filed
- A person who is the foster parent of a child placed by the Texas Department of Family and Protective Services in the person's home for at least twelve (12) months ending not more than ninety (90) days preceding the date of the filing of the petition
- A person who is a relative of the child within the third degree of consanguinity if the child's parents are deceased at the time of the filing of the petition
Texas law also provides an additional method of conferring standing upon grandparents who might not otherwise meet the above requirements if: the Court order being requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or, both parents, the surviving parent, or the managing conservator, or custodian either filed the petition, or consented, to the suit. Also, the court may grant a grandparent (or other person deemed by the court to have had substantial past contact with the child leave) the right to intervene in a pending suit filed by a person authorized to do so under Texas law if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Thus, even if a grandparent does not otherwise have legal standing under Texas law, the fact that such a person is a grandparent can confer standing to file either an original suit, or an intervention, in a pending suit if the grandparent can present satisfactory evidence that placing the child with the parents would significantly impair the child's physical health or emotional development, or if both parents or the primary parent consents. While this is a heavy burden, it is also one that does not require the lengthy time requirements of many of the provisions of Texas family law.
Some Texas courts have found recently that the mere existence of a grandparent-grandchild relationship is sufficient to confer standing to file an intervention in a pending suit, thus recognizing, if not elevating, the status of grandparents, as opposed to other persons related to, or with substantial past contact with, the child. However, it is very important to note that recent court rulings have strongly implied that only the testimony of an expert is sufficient to determine under what circumstances could a grandparent ever be successful in obtaining grandparent access to a child solely on the basis of "emotional impairment," unless an expert had coincidentally already been in place and could offer such testimony to the court or the grandparents have sufficient funds to pay for the appointment of such an expert to investigate and make a report or recommendation to the court.
Best Interest of Child
If both parents and the grandparents are willing, a properly written agreed order may be drafted and presented to the Court. But, if you are unable to reach such an agreement, and are further being prevented from regularly visiting with your grandchild, or you as a parent believe it is not in the best interest of your child to spend time with the grandparents, you will need the experience of a family attorney who has been involved in such contested cases to protect your rights and the child's rights.
Our firm has served the Dallas area for over 40 years, and attorney Jerry W. Melton is Board Certified in Family Law by the Texas Board of Legal Specialization. We have the resources to answer all of your questions concerning grandparents' rights and the qualifications to present a strong case for you. Please fill out our form online or call 972-980-8000 today to schedule a free consultation.