Grandparent Rights, Standing, and the Parental Presumption

The other day I had a consult with a husband and his wife because they had serious concerns regarding the grandparents of their kids. From my conversation with this couple I learned that the Grandparent’s had been threatening to taken them to court and get “Grandparent’s Rights” and take the children away from the parents.

Does Texas Law allow grandparents to take you kids?

Many parents have had a passing fear that someone may come to their home night and take their children away. Hopefully, though this is not a fear that it would be your child’s Grandparents.

There are certain circumstances in which law enforcement might be able to show up and remove your children from your home including if you are using illegal drugs, if you are leaving them alone at the age of 5 or less, you are not feed them, etc.

In such circumstances you might find yourself visited by a CPS worker and your children may end up being places with a Grandparent. However, a Grandparent does not have special rights to your children. There are certain circumstances where a grandparent may gain rights to your children through a lawsuit in court.

There are no automatic grandparent’s rights

In my consult with the Parents I found out that the Grandparents had been using some real intimidation to make the couple question themselves and put them in fear of losing their children.

From my brief encounter with them they seemed like a normal couple from a nice neighborhood. They did not seem like anyone who would ever have a reason to fear that CPS would ever knock on their door.

They both worked hard at their jobs, would come home and make sure their children had a meal to eat. However, these Grandparent would then criticize the parent that it was less than nutritious or that it was not a homemade meal and was carryout.

These Grandparents made a special effort to points out everything the parents were doing wrong. I let the parents know at this point that from everything I heard so far they could just ignore the Grandparents.

Some states are more court friendly to grandparents than in Texas. Texas has taken the approach that grandparents can see their grandchildren any time a parent of that child wishes. However if the parents object to grandparent visitation then they will not happen.

In other words grandparents have no legal automatic visitation rights to their grandchildren they would have pursue them by going to Court.

Parental Presumption - a Steep Mountain Grandparent’s must climb

There was more to story. The Grandparents were sending threatening emails to the couple. They were not content to just tell them how to raise the grand kids, but were planning on filing a lawsuit because they did not think the parents were raising the children right.

In Texas putting on evidence that the non-parent would be a better parent to the child is not enough to win in court and become the managing conservator of a child instead of a parent. More is required.

If a parent is simply denying a grandparent access to a child a courts will presume that the parents are acting in the child’s best interest. Under Texas Family Code § 153.433(a)(2) a grandparent will have to overcome this by a preponderance of the evidence.

A non-parent can only gain possession or access of a child over a parent when they can show under Texas Family Code § 153.432 (c) that not doing so would “significantly impair the child’s physical health or emotional well-being.”

What this means is that once parents and grandparents walk into a court in a battle regarding the grandchildren they are not on equal footing. Parents are ahead and not just a little. However, before grandparents can even get to court they have another problem.

Standing the Battle before the Custody Battle

Before the grandparents can bring a lawsuit in Courts regarding their grandchildren, Texas law requires they have standing to do so.

The Texas Family Code states that the court may order reasonable possession of or access to a grandchild by a grandparent if:

at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:

has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
has been found by a court to be incompetent;
is dead; or
does not have actual or court-ordered possession of or access to the child.

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