Most child custody conflicts involve parents as the only litigants. However, an increasing number of grandparents are petitioning Texas courts seeking conservatorships or access to their grandchildren.
Child custody laws in Texas for grandparents are strict. Grandparents in Texas face an uphill battle. Texas courts adhere closely to U.S. Supreme Court precedent.
According to the Court and the Texas Family Code, parents, not grandparents, have a fundamental right to the care, custody, and control of their child.
For this reason, grandparent custody rights in Texas are not about second-guessing the parent. Indeed, the law presumes that a parent acts in their child’s best interest in deciding how much time their children spend with grandparents.
However, child custody laws in Texas for grandparents apply in certain rare situations. The purpose of this article is to explore these situations and how grandparents can get custody of grandchildren in Texas.
Can Grandparents Sue for Custody in Texas?
Yes. Conservatorships are the most common scenario wherein a grandparent will petition a Texas court for custody rights. As a conservator, a grandparent would have the authority to make major decisions affecting the child. Said decisions include those related to medical, dental, and psychiatric care.
Conservatorships also permit the grandparent to consent to immunizations and the release of HIPPA information. They further authorize the grandparent to obtain health insurance for the child and make educational decisions. Finally, a conservatorship allows the grandparent to apply for public benefits on behalf of the child.
Whether a court will award grandparents’ rights in Texas depends on several factors. These include the circumstances of the parent, the applicability of the relevant statutes, and the relationship between the child and grandparent.
Many grandparents in Texas find themselves in the position of having to provide for the daily needs of their grandchildren. It is often the case that the child’s parents either cannot or will not do so themselves. Parental consent is the easiest and least adversarial means for a grandparent to get a conservatorship of the child. Note that if both parents are alive, both parents must consent to the conservatorship.
Death of Parents
Texas law provides that a grandparent may seek a conservatorship if the child’s parents are deceased at the time of the filing of the petition. In addition, Texas law allows grandparents to seek a conservatorship where both the child and the child’s parent reside with the grandparent for at least six months and the parent subsequently dies.
Care, Control, and Possession of Child for Six Months
Texas law permits a grandparent to seek a conservatorship over a child where the said grandparent has exercised “care, control, and possession” of the child for at least six months prior to the filing of the petition.
Texas courts have held that a determination of whether a grandparent has exercised care, control, and possession of a child is fact-based. It turns upon who has provided for the child’s needs for the past six months. Needs include daily care, protection, discipline, food, shelter, and medical care, as well as any special needs of the child.
It is possible for grandparents to prove this even if the child’s parent was also living with the grandparent and the child during the relevant time, though it will likely be more difficult.
Significant Impairment of Child’s Health or Development
Texas law specifically provides for grandparents to seek a conservatorship over the child where the circumstances are such that remaining with the parent or parents would “significantly impair the child’s physical health or emotional development.” Note that unlike the other options discussed above, the child does not have to reside with the grandparent for six months.
Grandparents are frequently successful on this claim where the grandparent has taken on the parental role and one or both parents attempt to sever the grandparent-grandchild relationship.
Access and Possession
As an alternative to outright conservatorship, grandparents may be able to seek access (i.e. visitation) with the child. In general, a grandparent must overcome the presumption that a parent acts in their child’s best interest. They do this by showing, by a preponderance of the evidence, that denying access would “significantly impair the child’s physical health or emotional well-being.”
Trust an Experienced Texas Grandparents’ Rights Attorney
Can grandparents get custody of grandchildren in Texas? Yes. However, grandparents’ rights cases are complicated, emotional, and very fact-intensive. What may “significantly impair” one child’s physical health and emotional development may not be applicable to the next child.
The seasoned grandparents’ rights attorneys at Larson Law Office understand that your circumstances are unique. We offer dedicated and highly personalized services tailored to your goals and needs. Contact us today for a free consultation. We will listen to you and can help identify your best options.