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Katy Grandparents' Rights Attorneys

The Basics of Grandparent Rights

Grandparent custody and visitation rights in Texas can be complex and difficult to navigate. The United States Supreme Court, in the Court case Troxel v. Granville, gives biological parents of a child deference to make decisions about that child. This case says that parents have a fundamental right to make decisions concerning the care, custody and control of their child. If a parent cares of his or her children, there normally is no reason for a state to inject itself into the family unit.

The Texas Supreme Court has also said that Texas courts cannot order grandparent visitation when there no evidence of an unfit parent, no evidence that a child’s health or emotional well-being will suffer, and no evidence that a parent intended to exclude a grandparent from seeing a child completely.

In some circumstances, grandparents may seek conservatorship of their grandchild or possession and access with their grandchild. To obtain this, however, a Court must determine that the grandchild is in danger or in need of the grandparent’s care. Simply disagreeing with a parent’s parenting choice or wishing to spend more time with the grandchild may not be sufficient to obtain conservatorship or possession and access.

Legal Requirements to Obtain Grandparents Rights

A grandparent may only seek conservatorship or possession and access of a grandchild under certain circumstances. First, a grandparent must decide whether they are seeking conservatorship or possession and access. Conservatorship is decision making ability for the child. Possession and access is visitation or time with the child. There are two different sets of laws – one applies to a grandparent seeking conservatorship and another set of laws for a grandparent seeking possession and access. Once a grandparent decides what course of action to pursue, they must establish standing.

What is Legal “Standing?”

Standing is the legal ability to bring a lawsuit. In order to file a lawsuit, you must be authorized to do so by a particular law. This prohibits parties from frivolously filing lawsuits which can clog the court system.

Standing only allows a party to put their foot into the Courtroom. Having standing does not automatically give a party conservatorship or possession and access. It is worth noting that obtaining conservatorship or possession and access over a grandchild is very difficult. Oftentimes grandparents are not successful. Standing only allows a grandparent to properly file a lawsuit to attempt to prove their case.

How Can a Grandparent Obtain Standing for Conservatorship?

There are several ways in which a grandparent can obtain standing for conservatorship, including:

  1. The grandparent had care, custody and control of the child for at least six months prior to filing the lawsuit
  2. The child’s present circumstances significantly impair the child’s physical health or emotional development
  3. Both parents, the living parent (if one parent is deceased) or a named managing conservator requested the grandparent have conservatorship or consents to the grandparent suit
  4. If both parents are deceased

In Texas, a grandparent cannot file an original suit to request possessory conservatorship. The only time a grandparent can request conservatorship is if there is an ongoing case, then and only then, can the grandparent intervene or insert themselves in the case. However, to successfully do this, a grandparent must have had substantial past contact with the child.

If there is an ongoing case, a grandparent can request conservatorship with a child if the grandparent files an affidavit. This affidavit must show that a denial of conservatorship by the grandparent would significantly impair the child’s physical health or emotional development. The law requires an affidavit that is based on a grandparent’s personal knowledge. That means the affidavit must be based only on what the grandparent knows and has witnessed. Oftentimes this is very difficult to achieve because a grandparent may not be around the child.

How Can a Grandparent Obtain Standing for Possession and Access?

Obtaining grandparent visitation is incredibly difficult to achieve. This requires a few different prongs which are as flows:

  1. At least one parent has not had their rights terminated;
  2. The grandparent overcomes the presumption that a parent acts in the best interest of the child; and
  3. The parent of the child:
    1. Has been in jail or prison three months before filing;
    2. Has been found incompetent;
    3. Is dead; or
    4. Does not have court order visitation

The reason this is difficult to achieve is because a grandparent must overcome the presumption that a parent acts in the best interest of the child. As discussed above, both the Supreme Court of the United States and the Texas Supreme Court give parents the fundamental right to have care, custody and control of their child.

Overcoming this fundamental right can be an uphill battle. While not impossible, it will certainly be challenging. To determine if your case meets and of the prongs for obtaining grandparent rights, consult with one of our knowledgeable attorneys.

What Does "Present Circumstances Significantly Impair the Child’s Physical Health or Emotional Development" Mean?

Several times above, the words “significant impairment to the child’s physical health or emotional development” were mentioned. This is a threshold that must be met in order to be successful in obtaining grandparent rights.

In order to show that the child’s present circumstances significantly impair the child’s physical health or emotional development, there must be a serious and immediate concern for safety and welfare of the child. This requires satisfactory proof that there is an impairment to the child.

The Court has stated that only in extreme circumstances does a grandparent have standing. Courts have held that physical abuse, severe neglect, abandonment, drug or alcohol abuse or immoral behaviors by a parent are all factors a Court considers in assessing significant impairment to a child’s physical health or emotional development.

It must be noted that a grandparent who seeks to obtain standing in this manner cannot meet their burden of proof by showing:

  • They would be a better custodian of the child
  • That he or she has a strong and on-going relationship with the child
  • That a parent would not be a proper custodian in the past

The Court requires clear evidence that there is a substantial impairment – not that there could be harm.

Once a grandparent meets the Standing requirement, the grandparent then must show that it is in the Best Interest of the Child to obtain the requested conservatorship or possession and access.

If you are a grandparent or a parent who was sued by a grandparent, give our office a call to discuss your case and learn your position in the law.

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