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Grandparent's Rights

This page is intended as a very general overview of the rights of grandparents to their grandchildren. The statements and information provided on this website are for informational purposes only. This site is not intended to provide legal advice to the reader and NO attorney-client relationship shall be deemed to arise from the receipt of this page. An attorney-client relationship only arises after the attorney and client have signed a written attorney-client agreement, after the attorney has evaluated the background facts provided and has accepted the representation of the client's legal action.

If you are confused about what rights grandparents have under Texas law, you've got plenty of company. This is one area of Texas family law that seems to confuse even the lawyers and judges practicing it. That's due to a couple different factors. First, there are several different provisions of the Texas Family Code that affect a grandparent's rights, and they use confusingly-similar language. Second, the simple fact is that most lawyers don't deal with those Code sections very often. Although grandparent cases are becoming more and more common, the vast majority of custody cases still involve just one parent versus the other. So, combine confusingly-worded Code sections, with lawyers who don't use them often, and you've got yourself an area of the law that nobody's too sure about.

This article is an attempt to give you a general framework in which to understand Texas grandparents rights. And the starting point for discussing grandparents rights in Texas is the concept of “standing”. “Standing” refers to a grandparent's (or anyone's) right or ability to file a lawsuit—not necessarily to win that lawsuit, just the right to get in the courtroom and be heard. So, at the outset of the lawsuit, the grandparent will have to establish that he or she has standing to file the suit in the first place. Once standing is established, then attention can shift to the “burden of proof”. “Burden of proof” refers to the evidence a grandparent will have to produce in court to actually win the lawsuit they filed.

The rules about what is required to establish standing, or to satisfy the burden of proof, vary depending on what type of suit the grandparent is filing. So let's look at the different types of suits in turn:

Suit for Conservatorship/Custody

Standing

If a grandparent wants to file a suit for conservatorship (sometimes referred to as “custody”—read more about custody) of their grandchild they will have to establish their standing to do so under one of two Family Code sections: §102.003 (the “general standing statute”) or §102.004 (the “grandparent standing statute”). The general standing statute sets out a number of ways in which a person (not just grandparents) can establish their standing to file suit. We won't go into all of them here, but will mention some of the grounds that commonly apply to grandparents. The general standing statute says a person may file a suit for conservatorship if the person is:

  • A person, other than a foster parent, who has 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;
  • A person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition; or
  • A person who is a relative of the child within the third degree of consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition.

So, if a grandparent fits into any of those categories, he or she will have the right to file a suit for conservatorship under the general standing statute. If the grandparent doesn't fit into any of those categories, he or she may still look to the grandparent standing statute. The grandparent standing statute allows a grandparent standing to file a suit for conservatorship if he or she can show that:

  • The order requested [by the grandparent] is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or
  • Both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

These provisions are, in one sense, more difficult to meet than the provisions of the general standing statute: the general standing statute doesn't require the grandparent to prove that the “child's present circumstances would significantly impair the child's physical health or emotional development.” But, on the other hand, the grandparent standing statute does not require the grandparent to prove that the grandchild has been living with him or her for 6 months.

If a grandparent cannot meet the standing requirements of either the general or grandparent standing statutes, he or she won't be able to file a suit of their own for conservatorship. But, the grandparent may still “intervene” (meaning, to join a lawsuit already in progress) in a lawsuit filed by someone else - if the grandparent can make a showing to the court that “appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.” Significantly, an intervention allows the grandparent to disregard the usual requirements for standing and means that he or she will not need to show that the child's present circumstances will cause physical or emotional impairment. Obviously, the rules on standing are complex and, before taking any action, you will want to discuss the different grounds for standing that may be available to you with one of our child custody lawyers.

Burden of Proof

After establishing his or her standing to file suit, the grandparent will have to satisfy the burden of proof to actually prevail in the suit. In an original suit for conservatorship, this will usually mean overcoming the “parental presumption” of Texas Family Code §153.131. That Code section states that the Court must appoint the child's parents as conservators unless the Court finds that doing so would “significantly impair the child's physical health or emotional development” (here is one of those instances of the Code using the same language in the context of standing and burden of proof, which leads to some of the confusion mentioned before). Thus, in order to prevail in an original suit for conservatorship, the grandparent will ultimately have to prove that the grandchild's physical health or emotional development would be significantly impaired if the parents were appointed as conservators.

The rule is different in a modification suit (a suit to change the ruling the court made in a, previous, original suit). In a modification suit, there is no “parental presumption”. See In re V.L.K., 24 S.W.3d 338 (Tex.2000). Under Texas Family Code §156.101, the burden of proof in a modification suit is simply whether or not the requested modification would be in the “best interest of the child.” So, it will often be easier for a grandparent to obtain conservatorship of a grandchild through a modification, rather than an original suit.

Suit for Possession/Visitation

As an alternative to filing a suit for full conservatorship of their grandchildren, a grandparent may file a suit for possession (sometimes referred to as “visitation”—read more about visitation) under Texas Family Code §§153.432-434.

Standing

Standing is much more straightforward for this type of suit than it is for a conservatorship suit. Family Code §153.432 gives standing to a “biological or adoptive grandparent”. Nothing further is required to file the suit.

Burden of Proof

But, the easier standing rules are offset by some stricter burden of proof rules. §153.432 also imposes a requirement that the grandparent attach to his or her petition an affidavit setting out the following elements:

  1. At least one biological or adoptive parent of the child has not had that parents' rights terminated;
  2. Denial of possession of the child by the grandparent will significantly impair the child's physical health or emotional well-being; and
  3. The grandparent seeking possession of the child is a parent of a parent of the child, and that parent of the child:
    1. Has been incarcerated for the three months preceding the filing of the suit;
    2. Has been found incompetent by a Court;
    3. Is dead; or
    4. Does not have actual or Court-ordered possession of the child.

The judge will look at the grandparent's affidavit and try to decide whether, assuming all the facts in the affidavit are true, would it prove all the above elements. If the judge decides that the affidavit does NOT establish all those elements, he or she will order the suit dismissed. If the judge decides the affidavit does establish all the elements, he or she will allow the suit to go forward and the grandparent will then need to prove all those elements in a (potentially contested) trial.

Other Scenarios

There are other scenarios where grandparents may be granted possession of their grandchildren, short of bringing a suit in their own names. For instance, grandparents may be able to exercise possession of their grandchild on behalf of the parent when the parent is unable to do so because he or she is away on military service. Or, if children have been removed from parents by Child Protective Services, grandparents are often the first alternative placement considered. And, sometimes, parents who don't feel they are up to caring for a child will agree to relinquish the child and allow the grandparents to adopt.

Authorization Agreements

The new Chapter 34 of the Family Code (effective Sept. 1, 2011) allows one or both parents of a child to sign an “authorization agreement” in favor of another relative. An authorization agreement does not give the grandparent (or other relative) conservatorship or possession rights over the child, but it can allow them to do the following:

  • Consent to medical, dental, psychological or surgical treatment of the child (except for abortions);
  • Obtain and maintain health insurance coverage for the child;
  • Enroll the child in a day-care or school;
  • Authorize the child to participate in extracurricular, athletic or other activities;
  • Apply for a learner's permit, driver's license or identification card for the child;
  • Authorize the child's employment; and
  • Apply for and receive public benefits on behalf of the child.

Either parent retains the right to terminate the authorization agreement at any time.

Please schedule a free consultation with one of our experienced family law attorneys to discuss the options available to you in more detail.

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