In yesterday’s blog post from the Law Office of Bryan Fagan, PLLC we discussed just how important a role in a child’s life grandparents play. Odds are good that if you read that post you are a grandparent yourself. I’ll start today’s post by telling you that by showing an interest and taking an active and involved role in your grandchild’s life you are providing more benefit to him or her than you may even be aware of. The reality of their situation is that what your grandchild sees on a family basis is likely more dramatic than what you are exposed to as a grandparent.
That is how things are on the ground level for you, your grandchild and your family. There is another level of concern when it comes to actually being able to take your motivation and your love for your grandchild and have that materialize into a successful legal case. The fact is that grandparents are not afforded many rights when it comes be able to do much of anything for their grandchildren if the child’s parents are not in agreement with the grandparent. If you are facing resistance from your child or from your child’s husband/wife then you cannot merely intercede on your own and expect the law to assist you.
Instead, you must assert your right as a close family member of your grandchild to be able to protect him or her from harm’s way. Other family members- uncles, aunts, adult brothers and sisters- also have the right to intercede a family law case or file a case of their own. Today’s blog post will center around the topic of grandparents and other extended family members seeking conservatorship of a child who is in a bad situation.
Actual, recent care of the child is essential
Under the Texas Family Code, if you are an extended family member who is seeking to file a conservatorship lawsuit you must be able to show that you have had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. This is pretty hefty burden that you must overcome in order to being a family law case or to intervene into an established conservatorship case.
When do we see situations like this arise? Often times a parent will drop their child off with you or another relative when something is happening that requires the parent’s attention. For most parents there is nothing in the world that could take their attention away from their child but in some situations parents will actually leave their child with another family member- sometimes for extended periods of time.
Those extended periods of time can often times lead to an undetermined length when your grandchild, niece or nephew’s parents do not return to pick him or her up. You are now left in a position where you are wanting to do what is best for the child but you do not have any legal rights to him or her whatsoever. What if your child were sick or needed to get medical attention? You don’t have the authority to make any decisions for him or her if you are not a conservator of the child.
By the same token you are not able to make decisions in regard to school related activities for your child either. If you are driving across town to take the child to school it has probably crossed your mind a dozen times how much easier it would be for your to enroll the child in the school in your neighborhood. Well, without a court order establishing conservatorship rights in you for that child you would not be able to do so.
As you can tell it is not only the “big picture” that can be a concern to you and other family members during this time but it is “small picture” issues that you deal with on a day in, day out basis.
What if you are only seeking a possessory conservatorship role with the child
The issues that we have been discussing for the past couple days have centered around a grandparent or other family member’s desire to become the primary caretaker and conservator of a child-relative who is in need. This would mean taking the child into your home and caring for him or her on a daily basis.
What if you did not want to go that far? Suppose that instead of trying to become the primary conservator of a child, you wanted to be able to act as a possessory conservator? This means that you would still be able to make decisions for the child but you would not live with the child on a daily basis. If this describes your situation then pay close attention to the next few paragraphs.
Under Texas family law, you are not able to file an original lawsuit wherein you seek to be named a possessory conservator. You can, however, seek to intervene into a previously filed lawsuit if you are able to show that you have had substantial past contact with the child in question. To summarize: if you are an extended family member of a child who is in a difficult position because of the actions of that child’s parent(s) then you cannot file an initial lawsuit seeking to be named a possessory conservator of that child.
A court will closely scrutinize your attempt intervene into a conservatorship proceeding. The type of lawsuit as well as your level of contact with the child in question will be looked into. For instance, even if you are a well meaning family member it will not be looked upon as a positive quality that you have not seen the child in months or never took part in the day to day raising of the child. That’s not to say that you do not are about the child, or certainly that you do not love the child. However, the bar that you need to clear in order to intervene into an established conservatorship case in Texas is high.
What does the Supreme Court have to say about grandparent access to a child?
You may be surprised to learn that our nation’s Supreme Court has come out with a decision in recent years that impacts family law cases related to grandparent rights and access. It is not often that the Supreme Court takes cases that involve family law matters but one such case known as Troxel v. Granville, the Court came down in favor of parents over grandparents.
Essentially, the Court determined that a parent has a fundamental right to be able to make decisions on behalf of their child. As such, unless he or she is determined by a court to be unfit as a parent then he or she should be given side latitude to make decisions that are in the best interest of their child. This is relevant to our discussion because if your child’s parents are not allowing you contact with your grandchild that does not necessarily violate the law.
Many grandparent conservatorship cases end up with a grandparent being granted time with their grandchild but not with actual conservatorship rights before awarded. The reason for this is that courts are hesitant to award grandparents conservatorship rights in fear of having their decision be overturned on appeal. With this in mind it is important that you have an established and experienced family law attorney in your corner to help advise you of your options and to guide you through the legal process of helping your grandchild.
Questions on your rights as a Texas grandparent? Contact the Law Office of Bryan Fagan
If you have any questions about the subject matter that we have covered today and yesterday then please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one our licensed family law attorneys six days a week. Our office takes a great deal of pride in representing people in our community just like you and look forward to getting the opportunity to listen to your situation in order to help you and your family.