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What are my Legal Rights as a Grandparent in Texas? An overview of grandparent visitation in Texas.
Do Grandparents Have Visitation Rights in Texas?
Grandparents have a legal right to visitation with their grandchildren. However, these rights are secondary to parental rights. That means the law guarantees a parent’s right to do what they feel is in their child’s best interest. Even if that means limiting or cutting off contact with a grandparent, these laws ensure the right of a parent to protect their children from individuals who may not have the child’s best interest at heart. However, this can make enforcing grandparent visitation a bit complicated.
What Are Grandparents’ Rights in Texas?
Parents aren’t the only family members with rights to custody and visitation after a divorce. It’s unfortunately not uncommon for grandparents to lose their right to visit their grandchildren when the parent granted custody is bitter from a difficult marriage or divorce. If you’re a grandparent in a situation like this, then you may want to consider speaking with a Texas grandparents’ rights lawyer from the Jimenez Law Firm. We can help you take your case to court and fight for the right to remain involved in your grandchild’s life.
The Texas Family Code states that a grandparent has the ability to file a new lawsuit or a suit for modification of orders so that they can get a court order granting them access to their grandchildren.
When Can Grandparent Rights Be Enforced?
The conditions under which the court will enforce grandparent rights are particular. You may be able to enforce grandparent rights if the parents are:
- Divorcing
- Suspected of abuse or neglect of the child
- Incarcerated
- Incompetent due to addiction or mental illness
- Deceased
Or:
- The parents have had their parental rights terminated
- The child has lived with the grandparents for at least six months
The court requires that visitation must be in the best interests of the children. If there is not clear and convincing evidence of this, then the court will not grant visitation.
The state also does not say how much visitation a grandparent can have. So, if, for example, the parents have limited your access to the child, you cannot sue for more visitation. Your best bet would be to try mending the relationship and asking to see the child more often.
How Do I Go About Getting Grandparents Rights?
When seeking grandparent visitation, the court does require that you have a prior relationship with the child. If you have no or limited contact with your grandchildren, your only real option may be to mend the relationship with the child’s parents.
Another option might be to petition for visitation, this does involve a lawsuit, but with mediation, you might be able to negotiate visitation. With increased access to your grandchildren, you might be able to gather the evidence needed to seek custody, if appropriate.
When Can a Grandparent Obtain Custody of a Grandchild?
In some situations, it may be necessary for a grandparent to take custody of their grandchildren. Under the law, the grandparent would be a ‘conservator’ of the child. To gain conservatorship, you must first prove the parents are unfit. A parent may be unfit to continue caring for the child if they:
- Have or will have their parental rights terminated
- Are incarcerated
- Were deemed incompetent due to mental illness or addiction; or
- Left the child with the grandparents for at least six months
However, for a grandparent to be able to gain custody:
- At least one of the child’s biological or adoptive parents must still have parental rights to the child
Even if you have actual care, control, and possession of the child for at least six months, you will need to be a conservator of the child to be able to:
- Enroll the child in school
- Add the child to your insurance
- Take the child to the doctor
A grandparent may also take custody of a grandchild if the parents have passed away. However, the court is primarily concerned with doing what is in the child’s best interest. The court will weigh a grandparent’s petition against that of any other family member seeking custody. If the grandparent is an older person living in a nursing home, it is improbable the court will grant them custody even if they are the only option for placement with a relative.
Texas grandparent custody rights
In some cases, grandparents play a strong role when it comes to raising and caring for grandchildren. This is especially common in situations where the parents are unable or unwilling to fulfill this vital role. If this is an ongoing situation, then it’s not uncommon for grandparents to feel as though it might be in the child’s best interest if they had full legal custody in the form of a conservatorship.
Typically, when one parent sues the other parent for custody, child support, visitation, or other issues regarding the parent-child relationship it is called a “Suit Affecting the Parent-Child Relationship” or SAPCR. However, in order for a grandparent to file this kind of suit, they must have actual care, control, and possession of the child for no less than six months and within the last 90 days prior to filing the lawsuit.
In cases where a grandparent can prove that the parents are unfit or are presenting a situation that is emotionally, physically, or mentally damaging to the child, then they may not require possession of the grandchild for six months.
Courts in Texas generally operate under the presumption that staying in the custody of their parents is in the best interest of the child. However, in the face of evidence of family violence or other crimes or if parents voluntarily relinquish custodial rights and duties for more than 12 months, the court is far more likely to grant custody to the grandparents.
What Evidence Will I Need?
When suing for grandparent visitation, you often have little more than personal testimony. You may, however, be able to ask for court-ordered interviews and studies to assess the child’s physical and emotional welfare. It is important to note that this must provide ‘clear and convincing evidence’ that grandparent visitation or conservatorship is in the child’s best interest.
Can a Biological Grandparent Obtain Visitation with an Adopted Child?
When a non-stepparent adopts a child, the rights of the biological parents are permanently severed. Unfortunately, grandparent rights come through parental rights. If a non-stepparent adopts the child, the grandparents are no longer legally entitled to visitation.
Can Grandparents Seek Managing Conservatorship?
If a grandparent seeks managing conservatorship, they are essentially asking the court to place them in the same legal position as a parent. This includes having the same rights and duties as a parent otherwise would have including the ability to make decisions regarding education, medical and mental health, and more. A grandparent can acquire these rights in one of two ways:
- Grandparents may have standing under the general standing statute
The two methods under the general standing statute are when the grandparent has actual care, control, and possession of the child for no less than six months which ended 90 days or less prior to them filing the petition. Or when the grandchild has been residing with the grandparent for at least six months ending within 90 days or less prior to the date of filing the petition if the child’s guardian, parent, or managing conservator is deceased when they file the petition.
- Grandparent standing statute
In the state of Texas, there is a special provision that allows a grandparent to seek managing conservatorship of a grandchild. The statute says that in addition to the general standing requirements, the grandparent may have standing to seek a managing conservatorship of a grandchild if:
- Both parents, the surviving parent, or the managing conservator gave consent, or
- The grandparent would be a necessary choice because the child’s current circumstances pose a danger to their physical health or emotional development.
In order to meet the requirements of the statute, the grandparent must present convincing evidence to the court that meets the significant impairment standard. This makes it vitally important that any grandparents seeking a managing conservatorship work closely with a grandparent’s right attorney regarding these issues. If they make a single misstep, then they could lose the entire case.
- Grandparent affidavit requirement
Under Texas law, when a grandparent files suit they must also file an affidavit known as the grandparent’s affidavit. This phase is critical and must be done correctly or the court may dismiss the suit.
Grandparents and Possessory Conservatorship
The grandparent statute in the Texas Family Code also allows grandparents to request possessory conservatorship. This is a conservatorship with rights to possession and access to the grandchild as well as the rights of a managing conservator. However, unlike with a managing conservatorship, grandparents can only seek possessory conservatorship by intervening in an existing child custody suit.
In this situation, the grandparent is still required to meet a standing requirement. However, they will only be granted standing and allowed to intervene if they can present proof that appointment of a parent or parents as the sole managing conservator or joint managing conservators would impair the physical health or emotional development of the child.
Grandparents Seeking Access to Grandchild
Grandparents can also seek just the rights to possession or access, more commonly known as visitation rights. The Texas Family Code known as the grandparent access statute gives grandparents access rights without appointing the grandparents as a conservator. This means that the court can order reasonable visitation to a grandchild by a grandparent if:
- At the time the request is made, at least one biological or adoptive parent has not terminated the parental rights of that parent.
- The grandparent overcomes the presumption that the parents act in the child’s best interest by providing evidence that denial of visitation would impair the child’s physical health or emotional well-being. And…
- The grandparent is the parent of a parent of the child and that parent has:
- Been incarcerated for the three months preceding filing the petition
- Has been found incompetent by the courts
- Has passed away
- Does not have actual or court-ordered possession of or access to the child.
When it comes down to it, each case is different and must be approached differently. However, under the right circumstances, the grandparents can and will qualify for a managing conservatorship, possessory conservatorship, or for visitation rights for their grandchild or grandchildren.
Your best bet to have a successful case is to work closely with a qualified grandparent rights attorney. The grandparent rights attorneys at the Jimenez Law Firm will help you protect the rights of your grandchild or grandchildren.
Do I Need a Family Law Attorney?
If you seek visitation privileges or conservatorship over a grandchild, it is crucial to speak with an experienced family law attorney. They will be familiar with the requirements to file and can help you build your case. A skilled family law attorney can also help you through the mediation process to hopefully negotiate a favorable visitation schedule.
