There are many misconceptions about grandparent rights and many alternatives available to non-parent relatives in child custody cases. The available options depend on the type of request, and the manner and time the child custody case has been filed.
Grandparent Rights to Conservatorship of Children
We will discuss circumstances where non-parent relatives (in this case specifically grandparents) may seek some form of rights to the children including:
- Possession, access, and visitation
There are two avenues for a non-parent relatives seeking to obtain some form of conservatorship of the children. The Texas Family code contains a general standing statute as well as standing requirements that specifically deal with non-parent relatives. For the purposes of this article, I am going to focus on grandparent’s child custody rights.
Managing Conservatorship refers to a designation upon a person that gives that specific person rights to make decisions for the child. Generally, managing conservatorship refers to custody as non-lawyers would understand the term.
However, it is not the case in every situation. As discussed above, a grandparent may seek managing conservatorship of a grand-child by original suit for intervention or to intervene into an already existing case if one or more of the situations listed below exist.
Situations for Grandparent Rights
The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. The 90 day time limit is an important limiting factor on this type of intervention. If you are intending to file a lawsuit as a non-parent relative or grandparent, then you need to contact an experienced child custody lawyer that has specific experience with interventions.
In addition to original standing under the Texas Family code, there are other options to file an original petition. Grandparents and other non-parent relatives of the child, related within the third degree of consanguinity, may file an original petition. The relative that files the petition will have to prove that the order is necessary. Reasons to prove would be present circumstances that would significantly impair the child’s physical health or emotional development (or if both parents consent to the intervention by a non-parent relative related within the third degree of consanguinity).
If any of the above situations exist then there may be a case for the grandparent to seek custody or visitation of the grandchild.
Grandparent Rights As Stated in the Texas Family Code
If the grandparent or other non-parent relative as defined above does not have original standing to intervene, as defined above, they must rely on another provision in the Texas Family Code. However, the case law interpreting this statute is contradictory and unclear.
The statute from the Texas Family Code states:
“An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter 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.”
As stated above, the problem with this statute is that it is ambiguous and unclear. The statute creates two groups of people that “may intervene” in a pending child custody suit. The grandparents are one of these two groups of people. The phrase “substantial past contact” is ambiguous. However, the courts do not even agree whether the statute refers to the grandparents or only to “other persons.”
The next requirement under the above statute, is the grandparent or other person must prove that “the 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.”
One would think that this requirement is black or white. However, the courts have disagreed on this requirement as well. The difficulty appears to be in applying the law to situations where the child has resided with a non-parent for most of the child’s life. The issue that makes the matter difficult for the courts to come to a consensus is overcoming the parental presumption.
The Texas Supreme Court has a general rule that a non-parent must offer evidence of specific acts or omissions by the parent(s) that have or will cause harm to the child. The issue as stated above where the child has never lived with the parent creates a problem in situations where there is only potential harm, and the parent has not specifically engaged in wrongful conduct.
More Situations About Grandparent Rights
This article is not addressing situations where one of the biological or adoptive parents has not had their rights terminated; and the grandparent requesting access to the grandchild can show that denial of access to the grandchild would significantly impair the grandchild’s physical health or emotional development. Also, that the grandparents son or daughter is incarcerated in jail or prison for the three month period prior to the filing of the lawsuit or deceased or found by a court to be incompetent.
The law regarding grandparent rights for child custody is very complicated. If you are a grandparent and need advice, contact a lawyer to discuss your options. This article is not exhaustive as to the law regarding grandparent rights for child custody. As discussed above, the law is very fact specific. Talking to an experienced child custody lawyer is vital. Do not rely on this article to make your decision regarding attempting to intervene into an existing child custody case or to file an original petition. Family lawyers experienced with grandparent’s rights need to be contacted quickly. Timing in this situation may be significant.
Consult With an Attorney
If you have questions about grandparent’s rights in Williamson County, call the Round Rock Law Office of Clifford Swayze at 512-920-5080.
We serve Williamson County, and Austin, Texas: Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor, Killeen, Temple, Coppers Cove.