Grandparent Child Custody Rights in Texas
Grandparent Rights to Custody of Grandchildren in Texas
In many families, grandparents play an integral role raising their grandchildren. Sometimes that role is direct care and physical custody of the grandchild when the parents are unable to do so. Other times, a grandparent's role is more indirect with visits, emotional support, even financial support for both the child and parents. The bonds created between grandparents and their grandchildren can be as strong as the bond between parents and their children.
Sometimes a grandparent is faced with a situation where they need to seek custody of the grandchild. If the parents consent, this can be accomplished formally or informally. If the parents have died grandparents can often assume the parental role over the grandchild.
Unfortunately, grandparents sometimes need to step in and seek custody from the parents who are not fulfilling their parental duties
and are exposing the child to risk of abuse or neglect under the parent's care. Mental health issues, drug and alcohol addiction, physical disability, criminal incarceration, domestic violence and even simple immaturity of a parent can pose a serious risk to the health and development of children. In such case, a grandparent should consider legal measures to remove or at least reduce those dangers to their grandchildren either by directly by seeking custody of the children, by notifying authorities of the situation, or both.
Sometimes, the grandparent has been simply shut out from the grandchild's life. The reason can be perfectly valid and appropriate such as if the grandparent poses a danger to the child. Other times, the reason may be more questionable such as a falling out between the parent(s) and grandparent over other matters or legitimate disagreements about the grandchild. Generally in this type of situation, as long as the parents are present and not unfit, courts typically defer child raising decisions to the child's parent(s) over the wishes of the grandparents. Because of this, the grandparent has little recourse other than attempting to reconcile the relationship with the parent.
However grandparents do have certain rights (or at least a voice) in many situations. In order to assert such rights in court, it first must be a situation where the grandparent has "standing" which simply means the right to be a bring a suit or be part of an existing suit.
Standing To Bring a Case for Custody
Grandparents (and other non-parents) may have standing to bring a case to obtain custody of a child. However, not every grandparent will qualify. These are typically grandparents who have previously assumed the parental role with the grandchild for a significant amount of time. This can also include situations when the parents have died or whose rights have been terminated, those whom the child has recently lived with for six months or more, those who have court authorized powers regarding the child such as guardians, long term foster parents, and those who already enjoy court ordered custody or visitation rights.
For grandparents, common scenarios are when the parents have died or when the grandparent has had actual physical custody of the child while the parents lived elsewhere (or the parents were leaving parental responsibilities to the grandparent).
Another common situation where a grandparent may have standing is when the child's present circumstances would significantly impair the child's physical health or emotional development. In such a case, a grandparent may have standing to bring a civil case independently or may wish to seek assistance from the police and child protection services. While there is no guarantee, if the police or child protection service agrees that the child is in danger of abuse, they will likely remove the child from the home. The grandparent could then volunteer to act as a foster parent for the child.
Proof Required for a Grandparent to Gain Custody of a Grandchild from a Parent
If the grandparent wishes to pursue a civil case and standing is established, in order to gain custody of their grandchild from the parents, the grandparent faces significant hurdles to overcome and bears the burden of proof. As alluded to above, courts have recognized due process rights of parents to raise their children. Court will not interfere with this without good reason. Accordingly, the grandparents must overcome the presumption that it is in the child's best interests for the natural parents to have custody over the child. However, this presumption does not apply if the parent has recently voluntarily relinquished actual care control and possession of the child to a non-parent, a licensed child-placing agency or an authorized agency for one year or more. So, a grandparent whom the child has lived with for a significant amount of time will often find it easier to be awarded custody of the child than a grandparent the child has never lived with.
However, the grandparents must also show that that parental custody would not be in the child's best interest because it would "significantly impair the child's physical health or emotional development." The grandparent may not simply speculate as to possible harm but must show evidence of specific identifiable conduct or inaction of the parent(s) that is likely to cause harm to the child. Typically, this is done by presenting evidence of past behavior that did or could have harmed the child. This could include evidence of drug addiction, criminal convictions, mental or physical health problems, abandonment of the child, domestic violence or acts uncovered by child protective services in Texas or other states.
Finally, as in all custody cases, the grandparent would have to convince the court that custody with the grandparent is in the child's best interest. The parents or any other party opposing custody with the grandparent will often allege and possibly bring forth evidence that the grandparent is not fit and therefore it would not be in the child's best interest for the grandparent to have custody. Other relatives of the child could also come forward to claim that the child should be in their custdy rather than the grandparent who brought the case.
Visitation Rights of Grandparents
Generally, grandparents may not bring their own suit to simply establish visitation rights with a grandchild. However, the grandparents may seek to intervene in an existing divorce or custody case involving the grandchild in order to seek visitation with the child. The court has wide discretion as to whether to allow the grandparent to intervene, and whether to grant the grandparent access to the child based on the best interests of the child.
However, when the child is adopted by someone other than the child's stepparent, the biological grandparents will no longer have right to seek visitation with the grandchild. This can happen if the grandparent for one reason or another is unable to care for the child and provide the child with a stable home, such as where the grandparent suffers from a disability including an age related disability.
Note: Texas and other states, often use terminology that most non-lawyers consider legal jargon. Since this article is not written for lawyers, laymen terms are often substituted. Because of this, this article is not intended to be used as legal research. Instead, you should meet with an experienced family law attorney to discuss your right.