Recently, I had a consultation with a couple who were deeply concerned about the involvement of their children’s grandparents. During our conversation, the parents shared that the grandparents had been threatening to seek “Grandparent’s Rights” through the court in an attempt to take custody of the children. What does the Texas Family Code have to say about this situation?
Does Texas Law allow grandparents to take your kids?
Many parents have had a passing fear that someone may come to their home and take their children away. Hopefully, though, this is not a fear that it would be your child’s grandparents.
There are certain circumstances in which law enforcement might be able to show up and remove your children from your home, including illegal drug use, leaving kids alone at the age of 5 or less, not feeding them, etc.
In such circumstances you might find yourself visited by a CPS worker and your children may end up with a grandparent. However, a grandparent does not have special rights to your children. But there are certain circumstances where a grandparent may gain rights to your children through a lawsuit in court.
There are no automatic grandparent’s rights
In my consult with the parents, I found out that the grandparents had been using some real intimidation to make the couple question themselves and put them in fear of losing their children.
From my brief encounter with them, they seemed like a normal couple from a nice neighborhood. They did not seem like anyone who would ever have a reason to fear that CPS would ever knock on their door.
They both worked hard at their jobs and would come home and make sure their children had a meal to eat. However, these grandparents would then criticize the parent that it was less than nutritious or that it was not a homemade meal and was carried out.
These grandparents made a special effort to point out everything the parents were doing wrong. I let the parents know at this point, that from everything I heard so far, they could just ignore the grandparents.
Some states are more court-friendly to grandparents than in Texas. Texas has taken the approach that grandparents can see their grandchildren any time a parent of that child wishes. However, if the parents object to grandparent visitation, then it will not happen.
In other words, grandparents have no legal automatic visitation rights to their grandchildren. They would have to pursue them by going to court.
Parental presumption – a steep mountain grandparent’s must climb
There was more to the story. The grandparents were sending threatening emails to the couple. They were not content to just tell them how to raise the grandkids but were planning on filing a lawsuit because they did not think the parents were raising the children right.
In Texas, putting evidence that the non-parent would be a better parent to the child is not enough to win in court and become the managing conservator of a child instead of a parent. More is required according to the Texas Family Code.
If a parent simply denies a grandparent access to a child, the courts will presume that the parents are acting in the child’s best interest. Under Texas Family Code § 153.433(a)(2): a grandparent will have to overcome this by a preponderance of the evidence.
A non-parent can only gain possession or access to a child over a parent when they can show, under Texas Family Code § 153.432 (c), that not doing so would “significantly impair the child’s physical health or emotional well-being.”
What this means is that once parents and grandparents walk into a court in a battle regarding their grandchildren, they are not on equal footing. Parents are ahead and not just a little. However, before grandparents can even get to court, they have another problem.
Standing the battle before the custody battle
Before the grandparents can bring a lawsuit in Courts regarding their grandchildren, Texas law requires they have standing to do so.
The Texas Family Code states that the court may order reasonable possession of or access to a grandchild by a grandparent if:
- at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
- the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
- the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:
- has been incarcerated 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.
Final thoughts
In conclusion, while grandparents in Texas do have the right to seek visitation or custody under certain circumstances, the Texas Family Code prioritizes the best interests of the child. Courts will typically consider factors such as the child’s relationship with the grandparents, the parents’ wishes, and any evidence of harm or neglect. However, parents generally retain the right to make decisions regarding their children’s care and upbringing unless there is a compelling reason to interfere. If you’re facing a situation where grandparents are threatening to seek rights to your children, it’s essential to consult with an experienced family law attorney to understand your options and protect your parental rights.
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