Custody and Visitation Rights of Grandparents in Texas

The attorneys with the Law Office of Bryan Fagan, PLLC have represented grandparents in many cases. As we could tell you, each family's circumstances were very different and represented just how diverse family situations are in today’s world.

While one set of grandparents may only seek visitation rights with their grandchildren, other grandparents may want to pursue custody of the grandchildren for many reasons. As such, our office has seen an increase in Grandparents who are interested in learning more about their rights within the context of attempting to:

gain conservatorship and/or
visitation of their grandchildren.

What follows is a blog post that details some of the more important aspects of Grandparents’ rights in the State of Texas and how they can impact you and your family.

Standing or the Right to File a Case

To even file a custody lawsuit in Texas, a potential filing party must have what is called.
“standing” to do so. Standing for family law cases requires that a potential party show that they are a person who has suffered an “injury” of some sort sufficient to be able to file a lawsuit to address that injury.

Chapter 102.003 of the Texas Family Code lays out the standing requirements for filing a suit in Texas. Typically grandparents qualify as a relative of the child at issue within the third degree of consanguinity.

Overcoming the Parental Presumption

Once a Court determines that a Grandparent does have standing sufficient to proceed with a lawsuit, there are further hurdles that must be overcome for a Court to rule in their favor. Texas applies a parental presumption on cases where Grandparents are attempting to assert a grandchild's right to visitation or custody.

This presumption is that the child's best interest is served by awarding custody to a parent or parent(s) and that it is presumed that parents act in their child’s best interest in any action that they take about the child.

For those that are interested, Texas Family Code section 153.131(a) details this presumption. To be successful in an original suit, a Grandparent or other nonparent must rebut this presumption by showing that the appointment of a parent as a conservator would significantly impair the child’s health or development or that the natural parent has voluntarily relinquished the child (In re V.L.K., 24 S.W.3d 338, 341 (Texas. 2000)).

Actual Care of the Child

In order, so a Grandparent may sue for primary conservatorship of their grandchildren (to allow the grandchildren to reside with them primarily and to have rights and duties to the children for educational, medical and psychiatric decisions, etc.), the grandparent needs to have had actual care, custody and control of the child for at least the previous six months before filing (Texas Family Code section 102.003(9).

Parents who relinquish their rights and physical custody of the child to the Grandparents. When the parents attempt to come back into the children’s lives and continue where they left off in terms of their parenting, some Grandparents do not willingly agree to this.

Examples #1

Two client situations come to mind that I think can go a long way towards illuminating the issues and variances between particular situations involving Grandparents' rights in Texas. The first involves two grandparents whose adult son was in prison but whose daughter in law was raising the grandchildren without our Grandparent-clients' involvement.

Initially, their hope and intention were to file a lawsuit to be named a joint conservator of the grandchildren. However, after speaking with them, it was determined that their best opportunity was to present a case to the Court to gain grandchildren's visitation.

Ultimately, the children’s mother and our clients negotiated a settlement in mediation, which allowed the grandparents to see the children monthly. This way, the grandparents had peace of mind knowing that there would be a court order in place that allowed them to have guaranteed time with their grandchildren.

Another positive aspect of this case (from the grandparents’ perspective) was that the children’s mother was facing criminal charges of her own and is set to stand trial later this year. The fact that these grandparents went through the effort to ensure that they have relationships with their grandchildren can show a court in the future that they have the continuing ties necessary to allow them to become conservators if neither parent can fulfill those duties.

Example #2

The other grandparent case that sticks out in my mind involves a Grandmother and her two grandchildren that she had been raising on her own since the death of the children’s mother (and the Grandmother’s daughter). The grandchildren’s father was not involved in their lives and had no intention to disrupt the grandmother’s relationship or caretaking of the children.

However, the grandmother could not apply for benefits, health insurance, or get access to school records without being a conservator of the children under Texas law. This client hired us to negotiate directly with the children’s father and to draft an Order that named her primary conservator of the children.

Her intent was not to eliminate the father’s rights to the children- all she wanted to do was to have the legal distinction of being the primary caretaker for the two boys to take steps to benefit their lives daily.

Ultimately, our office was able to work with the father on an Order that allowed our client to get her primary rights to boys while allowing him to retain his rights and duties as a dad. At the final hearing, the judge was impressed with our client’s attitude and generosity towards her grandchildren and made sure our client was aware of his admiration.

Whether a grandparent is requesting visitation or conservatorship rights to their grandchildren, experienced representatives are essential to this process. The attorneys with the Law Office of Bryan Fagan, PLLC, have knowledge of the legal system in Texas and the advocacy skills to turn that knowledge into results for clients. Please contact our office today with any questions and for a consultation with one of our attorneys- free of charge.

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