In the event that you and your family are impacted by a Child Protective Services (CPS) case or you are otherwise unable to care for your child, kinship placement may become a possibility for you and your family to explore.
Kinship placement is when one of your children (who are under the age of 18) go to live with a relative of yours when you are not able to exercise care or control over that child. You may be living in the same household as your child but from my experiences, the child will not be sharing a household with you. The reasons why your child may need to live with a relative can vary from family to family, but it could involve issues like the death of your spouse, or a situation where neither you nor your spouse is able to care for your child at the same time.
Reasons why you or your spouse may be unable to care for your child
It is always an unfortunate situation when a parent is not able to care for your child. You may find yourself in circumstances that require an extended absence away from your children. Drug or alcohol abuse, incarceration, child abuse or neglect, abandonment or mental illness are all possible reasons why you may find yourself in need of relatives who could care for your child either for a short or extended time period.
The purpose of today’s blog post is to share information with you that can assist you and your family if you find yourself in need of alternative arrangements regarding the care of your child. I will be writing about this subject both from the perspective of a parent and a relative caregiver.
What documents will you need to seek assistance as a relative caregiver
If you are a relative to a minor child who is in need of a home and have been asked by the child’s parent to act as a caregiver, you will need to have documents handy in order to seek assistance from the State of Texas in learning more about this process.
The child’s birth certificate, Social Security card, any court orders involving the child, report cards and immunization records are a good place to start. The court orders will need to be able to show that you have either temporary or managing conservatorship rights to the child, i.e., that you are legally able to be a decision maker for him or her.
Hearing phrases like “managing conservatorship” may throw you for a loop. After all, there are not everyday words that are thrown around with any regularity. If you are unfamiliar with this phrase you may also be wondering how you may be able to go about getting court orders that provide you with rights related to your young relative. Let’s spend some time talking about that subject right now.
Managing Conservatorships and finding out who can file a lawsuit to gain custody of a child
In order to go about legally obtaining custody or your child-relative, you must file what is known as a Suit Affecting the Parent-Child Relationship (SAPCR). If you are able to successfully file one of these cases and obtain an order that determines custody, child support, visitation rights and other pertinent issues you can use that order to get services that you need in order to help that child. To help speed this process up, if one or both of the child’s parents agree to allow you to be named as a conservator then the case becomes much easier.
That introduction brings us to the important question of who can file a SAPCR case. For starters, the petitioner (the person who files a Petition to be awarded conservatorship rights) must have exercised actual care, control and possession over the child for at least six months in Texas prior to the filing of the lawsuit. That six-month period must have ended no more than 90 days prior to the filing of the petition. If the child and their parent lived with you for at least six months prior to that parent dying, then the above requirement is also met.
Next, if both of the child’s parents are no longer living then an aunt, uncle or grandparent may file a SAPCR in an event to gain conservatorship rights to the child. Also, if you are an aunt, uncle or grandparent and can successfully argue that the child’s present circumstances would significantly impair the child’s physical health or emotional development a SAPCR can also be filed. Finally, if both of the child’s parents, the child’s surviving parent, their managing conservator or other person exercising conservatorship rights over the child consent to the filing of the lawsuit you can go ahead and file successfully.
What basic elements of a family law case in Texas must you be aware of before your case begins?
While an attitude that what is best for the child is very important it bears mentioning that a SAPCR case goes beyond that. Let’s discuss what factors you need to be acutely aware of before beginning a SAPCR.
The best interests of your child is a standard that the court will look to primarily when making a determination about where the child should live and what living situation will be the best interests of the child. At the end of a SAPCR case, the child’s parents should be named as the conservators who have the ability to make decisions on behalf of the child. The exception to this rule is that if a court determines that it would not be in the child’s best interests to do so, it will not.
The voluntary relinquishment of actual care, control, and possession of the child to you for a period of one year or more and your being appointed as the managing conservator of the child being in that child’s best interests will both need to be true in order to not have the child’s parents named as managing conservators in the SAPCR.
On a technical note, if you are the grandparent to a child you cannot file an original lawsuit in Texas in order to win conservatorship rights to that child. However, if you have had past substantial contact with the child then a court may allow you to intervene in the lawsuit. You must further show that the appointment of a parent as the sole managing conservator of the child or the appointment of both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.
How you can win possession/access to your grandchild in a SAPCR
In order to be awarded possession/access rights to your grandchild in a SAPCR, you will need to show that at least one parent of the child has not had their parental rights terminated and that a preponderance of the evidence (anything more than 50%) shows that your inability to be awarded possession of or access to your grandchild would significantly impair your grandchild’s physical health or emotional well-being.
If that isn't enough, you must be able to additionally show that one of the following conditions are present: your own child (your grandchild's parent) has been 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.
Guardianship as it relates to grandparent rights
A guardianship is a court-imposed process whereby you may be named as a guardian of your grandchild in order to protect him or her from abuse, neglect or exploitation. If your child is willing to sign a consent to guardianship form then this process can be greatly simplified. If your child passes away, then the other parent will be presumed to be the child’s legal guardian unless another court order exists stating that parent is incapacitated or has been found unfit to parent your grandchild.
In some situations, your grandchild may not have any surviving parent. In the event that your child did not appoint a guardian then the law in Texas states that the relative nearest to your child is entitled to become the guardian to your child. If two relatives of your child are equally situated to become guardians based on family lineage, a court must intervene to make a determination as to which one of them is best suited to step into this role for the child.
Making an adjustment to parenting your grandchild
If you are eventually successful in being named the primary conservator of your grandchild there will be a transition period that takes place, almost without exception. You will be re-learning how to parent a child and your grandchild will be adjusting to living in your household. An added element to this equation comes into play when and if your grandchild has, unfortunately, had to suffer through abuse or neglect at the hands of their parents. Helping your grandchild to feel safe is an important element of your role as primary caregiver.
Getting your grandchild into a set of routines is a good way to help him or her begin their transition into your home. Bedtime, dinnertime, homework, playtime, etc. should all occur at predictable intervals. Providing your grandchild their own room, belongings and other items can help him or her to feel like your home is theirs as well. While you are doing these things do not forget that discipline is an important part of the process, as well. Rules are established to help protect your child and to reinforce lessons that you are attempting to teach them during their days with you.
Help for you while you take on the responsibility of raising your grandchild
Your entire focus should not solely be on your grandchild during this time. You should remember to take care of yourself and to seek help where it is available to you. Feeling stressed, overwhelmed or worried about the particular responsibilities that you have on your plate is not uncommon.
There are support groups in your community that you should look into joining for people like you who are raising children that are not your own. Whether those support groups are offered through a state agency like the Department of Family and Protective Services (DFPS) or are offered through a local church, you should explore when these meetings occur and make every effort to attend them on a regular basis.
Something that I will recommend to clients in your position would be to go to your grandchild’s school and introduce yourself to their teachers and to school administrators. This way those people will know that your grandchild is going through a transition time period. Also, you can seek out any resources that the school or school district has available to people in your shoes. If your grandchild can see you take an interest in their schooling this may further assure him or her that you are here for the long haul.
A Court will base their decision on property law in Texas unless you are able to show that your pooch should be considered your separate property. You can read more about this topic in our blog article "Who Gets the Family Pet in a Divorce in Texas?"
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The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.
