Grandparents’ rights and child custody issues related to non-biological children

In yesterday’s blog post from the Law Office of Bryan Fagan, we discussed an issue that may, at first, seem to not come up that often in our line of work- attempting to win custody or conservatorship rights concerning a child who is not your biological son or daughter. However, it is a topic that comes up with some frequency and is increasingly becoming more important as families shift away from the “nuclear” unit that became the hallmark of our country in the mid-20th century. Now, the makeup and composition of families are varied, and you may want to learn more about how you can win custody or conservatorship rights over a child who is not your biological son or daughter.

The group of people who ask questions about this topic the most frequently are grandparents. I’m going to go out on a limb and guess that most of us have at least one grandparent if not two sets of grandparents, who have had a major impact on our lives. This is great and the memories that we have after spending time with our grandparents have shaped our lives in ways that we can’t imagine. I know that on a personal level, I can think of situations where things my grandparents said to me or opinions or ways of doing things were shaped in large part because of the influence that my grandparents had on my life.

Grandparents’ rights are an increasingly large part of our caseload here at the Law Office of Bryan Fagan. If you sat each of our attorneys down and asked them, every one of us could tell you a story about how we represented a grandparent or set of grandparents in a custody, adoption, or visitation case and how the outcome had a big influence on how we practice law and represent clients currently. Grandparents who attempt to come into the lives of the grandchildren to help them are some of the bests, most well-intentioned people that I have come across in my years practicing law.

If you are a grandparent reading this blog post, then you may be thinking back to all the times that you played a major role in the life of your grandchildren whether it is as an after-school caretaker or as a full-time mom or dad substitute. Your child or their spouse may have become ill, had to go overseas to fulfill a military obligation, or even served time behind bars. When a parent or both parents could not fulfill their duties to care for your grandchild, you stepped up to the plate and took care of business. In many ways, you may even feel like you are a parent to your grandchild already.

Unfortunately, how you and your grandchild feel towards one another does not replace a legal relationship in the eyes of your grandchild’s school, their doctor, and many other people in your life. To make decisions for your grandchild you need to possess conservatorship rights about him or her. Most children have two conservators- a mother and a father. Grandparents do not have conservatorship rights by being a grandparent. Grandparents have no rights concerning their grandchild that are not attached to their child or their child’s spouse.

A parent can prevent you from seeing your grandchildren if he or she wants to do that. It seems harsh and out of line, but it is the reality in Texas. Parents in Texas enjoy a presumption under the law that the decisions that they make on behalf of their children are in the best interests of that child. That means if your child withholds your grandchild from you then there are limited options that you must pursue if you want to continue to play a role in the life of your grandchild.

The most direct path towards attempting to win visitation or conservatorship rights concerning your grandchildren would be to prove to a court that you have standing to bring a lawsuit. Standing means that you have a specific and important role in the life of your child to the point where a court believes it necessary to be able to give you time in a hearing to explain why you should be provided with court-ordered visitation or conservatorship rights. You can usually establish standing by showing that you are a biological grandparent to your grandchild, that at least one of your grandchild’s parents still have parental rights, and that your grandchild will suffer hardship or emotional/physical harm if he or she can no longer have a relationship with you.

This is not simple to figure out. Arguing standing in a grandparent custody/visitation case takes some degree of planning and knowledge to execute well. You may have experience working in family law cases from a prior child custody or divorce case. However, those cases likely involved your marriage and your children. You had standing immediately, and it was not a point to be argued. Here, standing can be argued with ease if either one of your grandchild’s parents does not want you to be a part of the case. You can recite the information that we provided you with in this blog but what would you do if your child or their attorney gave a rebuttal argument as to why you didn’t have standing? What would you do?

Having an experienced family law attorney with the Law Office of Bryan Fagan by your side to help walk you through this situation is exactly the type of assistance that you need to succeed in a family law case like this. We know the law; we know how to present an argument to a judge and we know how to structure a case and organize your evidence. Most of all, we have the heart of a teacher. We will help you understand all these different facets (which are constantly in motion) so that you can make good decisions about your case and the direction that it is headed in.

Arguing that your grandchild is best off with you in their life as opposed to not being a part of it is not as simple as you think. You must be able to show and prove that you have had extensive contact with your grandchildren recently. That contact must have provided your grandchildren with a lot of benefits to the extent that their well-being- physically and/or mentally- would have been harmed significantly were you to be removed from their life. Presenting evidence like photographs, journals, and testimony about the extent to which you have cared for your grandchildren are all crucial to winning in cases like yours.

What about adopting a grandchild? Is that possible?

It is also possible for you to adopt your grandchild if that is the route that you think is in the best interests of him or her. The first step in his process is to move to terminate the parental rights of at least one, possibly both, of your grandchild’s parents. In a termination of parental rights case, there is almost certainly going to be some pushback from mom and/or dad. There is the fact that you are attempting to permanently sever the legal relationship between a child and a parent. However, there are also emotions associated with a case like this in that you are going against your child and their co-parent. This is not a natural or ideal situation but likely reflects the amount of concern that you have for your grandchild.

As we just alluded to, parental rights termination cases can be voluntary or involuntary. When parents agree to voluntarily terminate their parental rights a parent will volunteer to have their parental rights terminated as a part of an agreed petition to terminate parental rights. However, just because your child, their co-parent, or both have agreed to have their parental rights terminated does not mean that this happens automatically. Rather, the family court judge to whom the case is assigned will assess the situation, and the law and then determine what is in the best interests of your grandchild. It is not a given that your petition is granted just because Mom and/or Dad are on board with what you are asking for.

If you meet the relatively high burden of proof in a parental rights termination case (clear and convincing evidence), then the next step in the process would be to work towards the adoption that you are seeking. Once one parent (at least) has had their parental rights terminated or voluntarily relinquished you are clear for the adoption process. A grandparent will likely need to go through the same steps in the process that any adoptive parent would. This means having the child live with you for at least six months, having a study conducted, and then undergoing a criminal background check.

Please be aware that in an adoption case, your grandchild will likely be appointed attorney ad litem. An attorney ad litem is an attorney who is brought into the case by a judge to review the situation and make decisions for the child which are in his or her best interests. The attorney ad litem will talk with the child (if the child is old enough to speak) to see how that child is approaching the adoption and how things are going in your home. Essentially, the attorney ad litem acts as the eyes and ears of the court outside of the courtroom. That ad litem attorney will get to know your child on a level that is much more detailed than the judge ever will.

The main takeaway that I hope you receive from this portion of today’s blog post is that adopting a grandchild takes planning. You cannot wander into an adoption proceeding- proper planning and intentionality is required. You also cannot have an adoption case before you have a termination case. If you can do so, talk with your child and their co-parent- preferably before you file the termination case. Put yourself in their position for a moment.

You are struggling with something- as indicated by your willingness to intervene to adopt your grandchild. You may be working towards bettering yourself through stabilizing your employment, focusing on your mental health, and working to improve how you parent your child. Next thing you know- your parents have filed an adoption case and are seeking to terminate your parental rights concerning your child- how would that make you feel? To say that you would feel blindsided would be an understatement.

However, this is exactly how your child is likely to feel if you suddenly have him served with a termination lawsuit out of the blue. So, talk to him if you can. See if there are any alternatives to you doing this. Allow him to provide you with an update on his condition and what steps he is taking to better himself and his ability to parent your grandchild. You know the circumstances and have likely found yourself in the middle of them on more than one occasion. As a result, you can use your best sense when determining whether and how to proceed with a child custody or adoption case.

What will the costs be of adoption, child custody, or grandchild visitation case?

As with anything else in the world, there is a cost associated with bringing a family lawsuit involving your grandchild. First, you need to consider what it costs to hire an attorney. We think that it is essential for you to hire an attorney to assist in trying to achieve whatever your goals are with your grandchild. This isn’t just because we are a family law attorney’s office or because there is a requirement in the Family Code that you hire an attorney to represent you in a case involving your grandchild. Rather, it is because, over our decades of combined experience here at the Law Office of Bryan Fagan, we have found that parties who have representation tend to fare better in family law cases as opposed to unrepresented parties.

That rule of thumb tends to apply twice as much to grandparent-related cases. Right from the beginning of our discussion on this subject, we talked about how just getting your foot in the door for a grandparent-related case can be challenging. The ability to clear that hurdle related to standing is not easy in some cases. Knowing the law is crucial. Understanding what standing is and what the necessary elements are in a grandparent-rights case is not easy. A judge will not go easy on you just because you are an unrepresented party who has a heart for helping your grandchild. If you do not have standing or are unable to explain why you believe that you have standing a judge is not going to just give you the benefit of the doubt because you have good intentions.

So, when you decide to pursue a family law case involving your grandchild you are also deciding to hire an attorney. Family law attorneys bill by the hour. This means that the more complicated your case is and the more time that is required to work on your case the more expensive your case will become. Grandparent cases tend to be complicated and are therefore pricier than a typical family law case. If you decide to hire a lawyer you should talk to him or her when you are in the hiring process to have him discuss how his office bills clients, what date of the month you prefer to have money taken out of your account, and things of this nature. That way there are no surprises when the case begins.

Next, if you plan on adopting your grandchild then you should do some research ahead of time to find out more about the costs of that process. This way you can begin to budget out the costs in a way that is tenable for you and your spouse. Depending on your age it may make sense for you to take money out of a retirement account like a 401K or IRA if there are no penalties associated with you doing so. Or, if you are working you can begin to develop a budget which can help you plan for costs and be intentional with how your household dollars are spent.

The more intentional you can be the better off you and your grandchild will be. That will help set the tone for you all during a trying but ultimately rewarding family law case.

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  1. Grandparent rights in Texas: Visitation and Preparing for a case
  2. Custody and Visitation Rights of Grandparents in Texas
  3. Grandparents’ Rights in Texas
  4. Grandparent Visitation Rights in Texas?
  5. Grandparent Rights, Standing, and the Parental Presumption
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  11. Grandparents’ Rights in Child Custody Cases Texas: A Comprehensive Guide
  12. You’re a Grandparent- What rights do you have in Texas?
  13. Grandparents’ Rights in Texas child custody cases
  14. Assessing the legal rights of grandparents during a Texas divorce
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