What are my rights as a grandparent?

The bond between grandparents and grandchildren is time-honored and sacred in family structures throughout the world. Grandparents are often relied upon to care for their grandchildren when parents are, for whatever reason, not up to the task. Most of the time, families are able to work things out amongst themselves and never see the inside of a courtroom. There are times however, that such agreements are not possible.  Sometimes, the needs and safety of the child are in such jeopardy that grandparents must take legal action to make sure their grandchildren are safe.  When those times come, it is essential that grandparents seeking rights to their grandchildren hire attorneys who truly know and understand this complex and developing area of family law.

Grandparent custody rights in Texas can be complicated and difficult. Despite the complexity of grandparent custody rights, Texas law does provide several paths toward grandparent custody and grandparent visitation rights.

Do I have standing to seek custody?

The first step in obtaining custody or visitation with your grandchildren is determining whether you have “standing” to pursue a custody lawsuit. Standing is a person’s ability or right to bring and maintain a grandparent custody lawsuit. It is important to keep in mind that obtaining standing to bring your grandparent custody case, while a crucially important part of the process, does not mean that a court has awarded you actual custody or visitation. Once the issue of standing has been determined, the next step is to determine what rights to your grandchildren a court will grant you.

In Texas, there are essentially four different ways a grandparent can obtain standing to ask for custody (also called “conservatorship” in Texas) or visitation of their grandchildren in Texas.

1) The “Actual Care and Control” Standard

In general, the Texas Family Code allows for a grandparent to file suit to obtain custody (also called “conservatorship in Texas) of a grandchild if the grandparent has had “actual care and control” of their grandchild for six months or longer.  “Actual care and control” is a legal term that is not explicitly defined in the Texas Family Code, so whether you meet this burden will depend on the facts of your case. In the simplest terms, if you have shared a home with your grandchild and served in a parent-like role for six months or more, it is possible that a court will grant you standing to pursue your case. Some examples of the parent-like role include making and enforcing house rules, taking your grandchildren to important appointments, communicating with doctors and teachers, and helping with homework. The more of these kinds of things that you can demonstrate about your relationship with your grandchildren, the more likely it is a court will grant you standing.

2) The “Significant Impairment” Standard

The significant impairment standard is one of the highest burdens a court will impose. To pursue your grandparent custody suit under this standard, you must show that your grandchild’s present circumstances are so bad that they will significantly impair his/her physical health or emotional development. Examples of things that might meet this burden are drug or alcohol abuse, physical abuse, neglect, or emotional abuse by the child’s parents or caregivers. Needless to say, this is a high burden to meet, but if you are able to meet it, a court is likely to grant you standing to pursue your case.

3) The “Mutual Consent” Standard

This is perhaps the easiest to understand, but most difficult to obtain standard. Essentially if BOTH parents “consent” to your grandparent custody suit, the court will grant you standing to pursue it (one parent’s consent is not enough). It is rare for both of a child’s biological parents to agree to a grandparent custody suit, but it does happen. This usually happens when both parents know that they cannot care for their kids and need help from grandparents.

4) Grandparent Visitation

It is important to first understand that there is a difference between seeking grandparent custody (or conservatorship) and simple visitation. Custody/ conservatorship is the ability to make important decisions for your grandchild (i.e. medical, dental, educational, etc.). If you obtain conservatorship of your grandchild, the court can also award you a visitation schedule at the same time. However, some grandparents are only looking for visitation time with their grandchildren. Ironically, obtaining visitation rights with your grandchildren is the most difficult burden grandparents will face in Texas.

First, in order to obtain standing for grandparent visitation, you must establish that you are the parent of a parent who is either 1) deceased, 2) incarcerated for the last three months, 3) declared by a court to be “incompetent,’ or 4) who does not have any actual or legal custody of their child. If one of those four things is true, you must then prove that if you were not allowed to see your grandchildren anymore, it would significantly impair their physical health or emotional development. As discussed above, the “significant impairment” burden is incredibly difficult to meet.

Because of the highly elevated burden in seeking grandparent visitation, it is best to attempt to obtain conservatorship of your grandchildren if possible.

Obtaining Custody/Visitation

Once you have been awarded standing in your grandparent custody case, you can then ask the court for specific relief related to your grandchildren. Depending on the specifics of your case, a court can order a wide range of visitation options as well as the rights and duties related to your grandchildren.

The court’s primary concern is always going to be the best interests of the children in any custody case. The court always begins with the presumption that the parent-child relationship should be preserved and maintained above all others—even grandparents. Therefore, it is important to keep in mind that in deciding the rights and duties to award and the visitation schedule to put in place, the court will favor the parents unless there is a very compelling reason not to.

In any event, it is important to have lawyers who know this complicated area of the law backwards and forwards so that you have the best chance of success. At Hennan Culp, we believe that, in the realm of grandparent rights law, knowledge and expertise are the keys to the best possible outcome.