Assessing the legal rights of grandparents during a Texas divorce

For many families in southeast Texas, grandparents play an integral role in the growth and development of children and the family in general. Multi-generational households are common in many cultures that make up part of our community. Additionally, Texas is a very attractive place for grandparents to move to for multiple reasons. One, it has a great climate for those of you who have lived “up north.” My grandparents moved to Texas many years ago from Wisconsin so I can say from experience that the weather here is preferable to many places in the country (despite the humidity). Second, Texas has a low cost of living compared to most other places in the country which is extremely important these days. Finally, the job climate is competitive here so even if you are in your golden years or nearing retirement there are places where you can land once you do move here.

On top of that if you have grandchildren here in southeast Texas then I’m sure you want to be able to spend as much time with them as possible. Being able to lead a productive, purpose-driven life with grandchildren and family near to you is a dream scenario for grandparents, parents, and anyone else for that matter. Seeing the smiling faces of your grandchildren is enough to light up a room for many grandparents. Having a relationship with your grandkids as they age and mature is a delight, as well. Being a grandparent is an incredibly rewarding relationship to have. As one person once said: If I had known how much I was going to love my grandkids I would have been nicer to their parents!

All kidding aside, some challenges come along with being a grandparent. Managing the relationship between you and your child and their significant other (if there is one in the picture) is tricky at times. Boundaries are tough to manage sometimes. We all have times when we feel like there is someone in our life that is overstepping their boundaries with us. For those people who have no sense of boundaries, this is a tough lesson to incorporate into their lives. I’m sure that you have been tempted to tell your child an opinion about something that you’ve noticed about your grandchild but have thought better of it.

This can be a tough relationship to manage in the best of times. In the worst of times, being a grandparent can be especially difficult. If your grandchild is at the center of a child custody case that is taking place in southeast Texas, then you may have considered actively joining the lawsuit as a party. In a situation like this, you may be thinking about becoming a conservator of your grandchild or even asking for formal visitation rights. If you are thinking like this, then today’s blog post from the Law Office of Bryan Fagan is for you. We are going to talk about the rights of grandparents in Texas in family law cases.

The laws associated with grandparents in Texas

It is not easy to step into a family law case as a grandparent and pursue custody or even visitation with your grandchildren. The reason being is that parents are given the predominant right in Texas to be able to have controlling interests in the day-to-day lives of children and grandparents simply are not able to say the same. Prior appellate court decisions say over and over that parents are the primary decision-makers for children and that grandparents can have relationships and contact with grandchildren only to the point that a parent allows that contact to occur. There is not a well-established pool of rights for grandparents to draw from in Texas.

When a parent decides on behalf of their child it is presumed (legally speaking) that the parent is acting in the best interests of their child. This includes when a parent decides to either allow or disallow contact between their child and another person. If you are in a position where your grandchild has not been able to see you for an extended period, then this can be difficult but is not an uncommon situation by any means. On top of that, the law in Texas supports the parents’ right to choose how to divide time between their child and other people.

You can second-guess and question your child and their co-parent’s decision-making regarding anything that you want, but ultimately you face an uphill battle when it comes to trying to win custody or visitation of your grandchildren. You need to be prepared to undergo a lot of challenges to fight for your right to spend time with your grandchild. All the while it can look like the deck is stacked against you. In many ways this is true. However, there are paths that you can choose to take to benefit you and your grandchildren moving forward.

Going to court for custody of your grandchild

The question that we need to ask ourselves regarding going to court for a child custody matter related to your grandchildren is whether you can do this and whether you can win if the law allows you to move forward with a child custody case. The most common route for a grandparent to take when it comes to trying to win meaningful time with grandchildren is via a child custody case. Attempting to win conservatorship rights and duties is a huge step for grandparents and something that you should seriously think about before going this route. It is not easy to do, however, and we will cover why this is coming up.

You would be asking a court to name you as a conservator of your grandchildren. This is not the same thing as adopting them. By adopting your grandchildren, you would be their legal parent. A conservator of a child is not necessarily a parent. A conservator can make important decisions for your child regarding their healthcare, education, and other areas. Many people don’t consider the importance of these kinds of decisions when engaging in a child custody case, but any parent can confirm that having conservatorship rights and duties is integral to being an adult in the life of a child.

Let’s think about a situation where your grandchild came to live with you, but you were not their conservator. Your grandchild could live with you, no problem, if your child had an issue that he or she had to attend to which caused him to leave the state or otherwise be unable to care for your grandchild. However, there may be difficulties associated with this when it comes to making decisions for your grandchild or even taking him or her to the doctor if necessary. Trying to get health insurance for your grandchild is difficult to impossible if you are not their conservator. Whether it is private health insurance or health insurance provided by the government you need to be a conservator of the child to make those applications.

When you file a lawsuit for conservatorship rights in Texas a court will look at several factors when deciding on conservatorship and custody. What is happening with the circumstances of your child and their co-parent will be foremost among those considerations. Your relationship with your grandchild is also important. How often you see your grandchild and the extent to which you have played a part in their lives will be analyzed. Finally, the law in Texas will ultimately play a huge role in any success that you achieve regarding a grandparent’s rights case. Let’s review these factors in greater detail.

Consent of parents in grandparent rights cases

You may be the adult in the life of your grandchild who provides for him or her daily. Taking your grandchild to school, helping with schoolwork, cooking meals, traveling to different places, emotional support, and a place to live- the list goes on and on regarding the daily responsibilities of a caretaker. That is an awesome responsibility that you have chosen to take on- possibly because your child and/or their co-parent is unwilling to meet the responsibility and has instead passed it on to you. This is a situation where your child has permitted you to act as a caretaker and is not in opposition to your fulfilling this responsibility. In that event, it is much easier for you to win conservatorship rights over your grandchild.

If you file a child custody lawsuit in Texas and tell the court that you are doing so with the permission of your child (your grandchild’s parent) then you are on much firmer ground as far as ultimately winning conservatorship rights and duties. It is even more of a “sure thing” if both your child and their co-parent have given you their blessing in this matter. You want as little opposition to the lawsuit as possible. The more layers of defense that you need to sort through the less likely you will be to win your case. The key is that if both your child and their co-parent are still living then you must get both of their consent to ask for conservatorship rights and duties.

What happens if a parent dies?

If both of your grandchild’s parents are deceased, then you have the ability under the law of Texas to seek conservatorship rights and duties. In this case, you have probably been acting as a de-facto caretaker for some time before filing a conservatorship case in Texas. If your child was living with you and your grandchild and has since passed away, then you can show the court that this living arrangement occurred for at least six months before you filed the child custody lawsuit. In a situation like this, you would have smoother sailing in attempting to win custody rights although the circumstances are tragic if your child and/or their co-parent has passed away leaving your child with no parents who are alive.

When you have exercised care, control, and possession of your grandchild for at least six months before filing a custody lawsuit then you have the legal ability to seek conservatorship rights and duties over your grandchild. This is a fact-based question that will be analyzed via whether you have fulfilled this responsibility over the prior six months. If you have the evidence necessary to show that you have been the primary caretaker for your grandchild over this period, then you have a great opportunity to win conservatorship rights. You would need to supply evidence, however, which can be easier said than done. Keep track of the work that you are doing with your grandchild to show a judge that you have been doing the heavy lifting associated with care for your grandchild over the prior six-month (at least) period.

When we talk about daily care we are talking about a few different qualities. One, you would need to show that you have been providing care and protection for your grandchild. Next, you need to be able to show that you have been disciplining and generally providing a framework for how to live life for your grandchild. Food and shelter are almost a given when you care for another person, but these are factors that are important to family court judges. If your grandchild has a special need then you would have needed to provide for your grandchild. Medical or mental impairments often have additional steps needed to provide on top of the normal, daily routines that we experience in raising children.

Negative impacts on a grandchild if you are not in their life

As a grandparent, you may be concerned about your grandchild due to their no longer being in contact with you. It’s no wonder that so many grandparents worry about their grandchild and their development after no longer seeing them consistently. If you are being denied visitation time with your grandchild, then you could show a court that this denial is adversely impacting the health and development of your grandchild. In this option, you would not also need to show that your grandchild had lived with you for the prior six months (at least) before filing your conservatorship petition.

A significant impairment to the physical health or emotional development of your grandchild is the standard that a court looks to decide whether to award you custody of your grandchild. If you have always cared for your grandchild as the primary conservator but have now been denied access to your grandchild, then this is a potential avenue for you to take as far as trying to establish conservatorship rights about your grandchildren. These are the main ways for you to pursue conservatorship rights, but you should talk them over with your attorney before moving forward in any one direction or with any one specific plan.

Visitation with your grandchildren through a court

Visitation is what most grandparents naturally have with their grandchildren. It is not typical for a grandparent to have formal custody rights over a child. However, you probably have had visitation time with your grandchildren over the years. Going to their home or having the grandchild over to your house to spend the night or have a meal is a nice way to build a relationship with a grandchild. Unfortunately, this arrangement is not always able to persist due to several circumstances surrounding your relationship with your grandchild’s parents.

When you ask a court for visitation rights to your grandchildren what you are asking for are access and possession rights. Remember that there exists a legal presumption that your child is acting in your grandchild’s best interests when denying visitation with you. It may not feel like he or she is doing something good for your grandchild, but the law does not necessarily see it that way. As a result, you should know in advance that you face a bit of an uphill battle when trying to win visitation with your grandchild. You need to have all your ducks in a row and have a plan when pursuing a family law case.

The physical health and emotional development of your grandchild are paramount when making a case for visitation with your grandchildren. The standard of evidence utilized in a case like this is a preponderance. This means that you would need to be able to show that it is more likely than not that your grandchild’s physical health and emotional development have suffered because of not having contact with you. Since this is a fact-based determination, you would need evidence to bolster your claims.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.

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