Grandparents’ Rights – Can I File?

Sometimes in child custody matters, the grandparents of a child may seek to have rights established to the child either in place of the parents or to supplement the parents’ time with the child. In these cases, the grandparents of the child will likely need to consider filing suit for conservatorship or possession and access of the child. The rules behind whether a grandparent can file for these types of relief can be rigid and burdensome.

In order for a grandparent to file suit for conservatorship of their grandchild, they must first satisfy the standing requirements of the Texas Family Code. Standing is essentially the right to bring suit for the conservatorship of a child. The general standing provided under the family code does not give standing to grandparents specifically, but rather gives alternate ways in which they might achieve it.

One way is if the grandparent has had actual care, control, and possession of the child for at least six months ending not less than 90 days before the suit was filed. Another way is if the child’s parents are deceased and the grandparent is filing for custody. If a grandparent cannot satisfy these requirements, there is additional standing for grandparents laid out further in the family code.

A grandparent can file suit for custody if there is proof that giving them custody is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. In addition, a grandparent can intervene in a pending custody suit involving the child if there has been substantial past contact between them and the child, and giving the parents custody would significantly impair the child’s health or emotional development. These can be difficult burdens to overcome and are very fact-intensive based on the circumstances of a particular case.

Even if a grandparent cannot seek custody under these prior mentioned statutes, they might still be able to seek possession or access to the child. To seek possession or access to a grandchild, a grandparent must show a denial of possession or access to the child would significantly impair the child’s health and well-being. They would also need to show that they are a parent of a parent of the child who has been incarcerated for three months preceding filing, is incompetent, is deceased, or does not have court-ordered possession or access to the child.

As can be seen from above, the burdens put upon grandparents to be able to come into court and ask for custody or possession of their grandchild can be difficult to overcome. The family code has attempted to give some rights to grandparents when it comes to their grandchildren, but it must be remembered that the courts typically see the appointment of the child’s parents to be in the best interests of the child. This makes it particularly cumbersome for a grandparent to overcome this burden when asking for custody or possession of their grandchild.

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