Texas gives a grandparent the right to request custody of a grandchild if the court believes that (i) the grandchild’s “present circumstances would significantly impair the child’s physical health or emotional development"; or (ii) the grandchild’s parents, conservator, or custodian consent or filed the suit. While obtaining custody of a child from his or her parents is not an easy task as the U.S. Supreme Court has recognized that parents have a constitutional right to care and control their children, grandparent rights do exist if the grandparent can obtain standing. Absent a significant reason for a court to order otherwise; parents have a constitutional right to make decisions about their children per Troxel v. Granville, 530 U.S. 57 (2000), a U.S. Supreme Court case wherein the supreme court cited a constitutional right of parents to direct the upbringing of their children over the objections of any third party.
A grandparent may also obtain standing in a suit affecting the parent-child relationship if the grandparent can show that they have had possession of the child for 6 months or more and have cared for the child for “at least six months ending not more than 90 days” before the suit affecting the parent-child relationship is filed.
In Texas, a court can authorize grandparent visitation or "access" of a grandchild if visitation is in the child's best interest, and one of the following circumstances exists:
Visitation statutes do not give a grandparent an absolute right to visitation, and a grandparent may not request visitation if the grandchild has been adopted by someone other than the child's step-parent. But if your grandchild lives with you, you may wish to seek custody if you meet the six months requirements above.
A quick way for grandparents to achieve custody is for the child’s parent to sign a power of attorney giving the grandparents the right to decide the domicile for the child, education for the child, and medical care for the child. However, a power of attorney can be revoked, and therefore, it is temporary. Aside from the difficulties of getting parents to consent to the power of attorney, a downside to this approach is that it is temporary, as the parents can change their minds and revoke the agreement at any time.
The Texas, Family Code includes a list of situations in which a non-parent, such as a grandparent, can file an original suit affecting the parent-child relationship. For grandparents, assuming they've had “actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the petition”, then the grandparent has a general standing to request possession and/or access of the child without proving additional elements. If a grandparent does not otherwise have general standing , a grandparent may get possession of or access to a grandchild under Texas Family Code §102.004 if the grandparent can illustrate that “the child’s present circumstances would significantly impair the child’s physical health or emotional well-being.”
If a grandparent does not otherwise have general standing above, a grandparent may get reasonable possession of or access to a grandchild by a grandparent if the court finds the following:
A grandparent will need to attach a sworn statement that identified one or more of the above allegations (i.e., that denial of your access to your grandchild would significantly impair the child’s physical health or emotional well-being.) Any failure to meet the above requirements will result in the Court denying your relief and dismissing your suit for possession of your grandchild.
The right to parent is a constitutional right, and therefore, it is not easy for a grandparent, or any third party, to put themselves in the place of a parent. A successful grandparent custody or possession case must begin with an assertive offense with a lawyer capable of advocating for the best interest of the child. Our family lawyers have successfully taken numerous grandparent cases to trial, and we will fight for your interests and, most importantly, the interests of your grandchild.
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