What are Grandparent’s and Close Relative’s Rights in Texas?
The legal rights of Grandparents in Texas is currently in turmoil, and may be one of the most complex and hard to understand areas of family law in Texas today. Up until the landmark United States Supreme Court case entitled, Troxel v. Granville, of June 5, 2000, grandparents in Texas had liberal rights to sue for custody, possession or access. Post Troxel case law and recent changes to the Texas Family Code have significantly modified and limited those rights. It is important for anyone researching grandparent’s rights in Texas to understand that much of the law in this area has changed, not only because of the effect of Troxel, but also because of significant and far reaching changes to the Texas Family Code in 2005. Therefore, any older articles or old cases may be outdated and inapplicable to the current law. It is important that any person interested in obtaining rights to another’s child have a consultation with an experienced Texas family law lawyer. Gary Kollmeier has the experience to help grandparents keep or establish bonds with their grandchildren.
The relationships between children and their grandparents is important and generally in the best interest of the children. Unfortunately, these relationships may be strained or eliminated because of divorce, separation or death. When child custody and child possession is finalized, grandparents often lose the ability to contact and have an influence. Historically in Texas, Grandparents have stepped in to fill the void in care and nurturing caused by divorce separation, drug and alcohol abuse, or mental illness of the biological parents. Grandparents can play and important and supporting role to promote stability in the lives of children whose families are in deep conflict.
In a normal situation, there would be no need for court-ordered visitation or custody of children by grandparents. Grandparents and parents would work together to ensure and promote the normal family bonds and visitation by grandparents with grandchildren. Unfortunately, this if often not the case, when parents separate or divorce. There may or may no be justified and rational reasons, for a parent(s) to limit a grandparent's visitation with a grandchild. Usually, when Grandparent’s rights are in issue, the grandparent is in conflict with not only with the parent of the child from the other side of the family, but, usually his or her own adult child, and hence loses contact or influence with the grandchild. In Texas, a grandparent can always enjoy a relationship with a grandchild providing that at least one parent allow or facilitates the contact. Sometimes, especially in the case of unmarried or deceased parents, the remaining parent who has custody or control of the child is resistant to allow the grandparent access or visitation.
Overview - Grandparent Rights in Texas
Texas law provides a mechanism for a grandparent, and in some cases a close relative, to sue for custody (Conservatorship), Possession (visitation), or access of a grandchild. However, in Texas, the rights of a grandparent or other close relative in relation to a child can only be explained in the context of what is sought to be accomplished. Is it conservatorship (primary custody or some form of parental type rights), possession (visitation), or merely access?
May I ask the judge for visitation with my grandchild?
Yes, under certain conditions.
Under what conditions will a judge grant my request for visitation with my grandchild?
The judge may order visitation with the grandchild if:
- The parental rights of at least one parent have not been terminated; and
- Visitation with your grandchild is in that grandchild's best interest; and
- At least one the following is true;
Your child (a parent of your grandchild)
Has been incarcerated during the three month period prior to filing the petition;
Or,
Has been found to be incompetent; or
Is dead;
The parents of your grandchild are divorced or have been living apart for at least three months; or
Your grandchild has been abused or neglected by a parent;or
Your grandchild has been found by the court to be child in need or supervision;
Your child (a parent of your grandchild) has had his or her parental rights to your grandchild terminated; or
Your grandchild has resided with you for at least six months during the last two years.
Are there any circumstances under which I may not request visitation with my grandchild?
You may not request visitation with your grandchild, if the following circumstances exits: .
- Your child's parental rights have been terminated by court order or death;
- Your grandchild's other parent's parental rights have been terminated by court order or death;
- Your grandchild has been adopted by someone other than your grandchild's step-parent.
What are limitations of a non-parent’s rights to file a suit?
A significant and primary issue is whether the grandparent has standing, or the right to bring the suit and thereafter assert the rights they may have. Usually, certain of circumstances must arise before a grandparent has the right to bring a lawsuit or intervene in a Suit Affecting The Parent-Child Relationship. If the grandparent does not have the right to bring suit, it may not matter that the child’s best interest would not be met. If a grandparent or other close relative has standing, then they may have the right to request conservatorship (primary custody or possessory custody, possession, (visitation), or access, (telephone, cards, letters, email, web based access).
In Texas, there have traditionally been three ways for a grandparent to seek custody or visitation with a grandchild. Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request pure visitation. Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ.
It is important that any person interested in obtaining rights to another’s child have a consultation with an experienced Texas family law lawyer. Gary Kollmeier has the experience to help grandparents keep or establish bonds with their grandchildren.
Does my being a grandparent or close relative give me the legal right to file suit for possession, access, or custody of grandchildren or other children that I am related to?
It depends. Depending on the rights being sought, there are other requirements which must be met before you have the right to file suit against the will of the parent(s). The requirements to allow for a suit seeking managing conservatorship (custody) are much more stringent that if just seeking Possessory Conservatorship (visitation) or access. It is critical to understand that the right to sue is different than what rights you can sue for. The situations may greatly vary depending on the relief the grandparent or other relative is seeking and when in procedural timeline of the lawsuit the grandparent or other relative seeks that relief.
If I am not interested in getting primary custody of my grandchildren or the child of another close relative, do I have the right to file an original suit seeking possessory rights over the children (secondary to that of the parent named managing conservator)?
It depends. Assuming the suit is filed against the will of the parents, unless the grandchild has lived with the grandparent for at least six months (as mentioned above), an original suit requesting possessory conservatorship (visitation) may not be filed by a grandparent, however, a grandparent or other qualified adult may file an intervention into a pending suit affecting the parent-child relationship.
If I do not qualify to file an original suit, are there any other avenues available to me wherein I have standing to request possessory conservatorship of my grandchildren or the child of another close relative?
Usually, yes. A grandparent or other qualified adult may intervene in a pending suit affecting the parent-child relationship seeking possessory conservatorship of the children if: 1) the grandchild has lived with the grandparent for at least six months (as mentioned previously), or 2) the grandparent is found by the court to have had substantial past contact with the grandchild and the failure to appoint the grandparent as possessory conservator would significantly impair the child’s physical health or emotional development.
Assuming I have the legal right to file suit, what must I prove to be awarded primary custody (managing conservatorship) of the children who will the subject of the suit?
To be awarded managing conservatorship of child(ren), the person seeking the custody must prove: 1) that the appointment of the parents as managing conservators (to the exclusion of the grandparents or the other close relative) would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development, and 2) the parents are unfit.
What if do not desire to make important decisions made on behalf of the grandchildren (those made by “managing conservators” and “possessory conservators”) and I just want to see them regularly, do I have any legal right to the access of my grandchildren?
A grandparent can be granted access to his or her grandchildren, against the wishes of the grandchildren’s parents, if: 1) at the time of the request at least one of the parent’s rights have not been terminated by court order; 2) access is in the grandchild’s best interest; 3) the grandparent’s own child (the mother or father of the grandchild at issue) has been in jail/prison for three months prior to filing or has been found by a court to be incompetent or dead or does not have court-ordered possession or access to the child; and 4) the parent is unfit or denial of access by the grandparent to the grandchild would significantly impair the child’s physical health or emotional development.
Are there any presumptions against a grandparent being granted custody of or having possession and access to his or her grandchildren?
Yes. There is a fundamental legal presumption that a parent, not extended family (including the grandparents), should raise his or her own child. The above is based on the presumption that a fit parent makes decisions in the best interest of his or her child.
Can the above presumption be rebutted? If so, how?
Yes. The presumption that a parent should be appointed sole managing conservator, or the parents appointed as joint managing conservators over the children (to the exclusion of the grandparents), holds true unless: 1) it would not be in the children’s best interest because it would significantly impair the child’s physical health or emotional development, or 2) there is a finding of a history of family violence involving the parents. The presumption that a parent not appointed sole managing conservator or joint managing conservator should be appointed possessory conservator over the children (to the exclusion of the grandparents) holds true unless: 1) this would not be in the children’s best interest, and 2) it would endanger the physical or emotional welfare of the children.
What are the rights of related persons to sue for custody or possession of a child?
Recently, the Texas Family Code was amended to expand the class of persons who could obtain custody (conservatorship) of a child. The right to seek custody of a child has been extended to a specific class of adults related to the child within the third degree of consanguinity. “Third degree of consanguinity” means a child’s parents, brothers and sisters, grandparents, and great-grandparents, aunts and uncles by blood. Gary Kollmeier has the experience to help related persons and grandparents keep or establish bonds with their grandchildren. In addition, Texas law now also provides certain persons within the third degree of consanguinity (in termination cases great-grandparents are excepted) to seek custody of a child when the Texas Department of Family and Protective Services (Child Protective Services) has obtained the judicial termination of the child’s parent’s rights, provided that suit is filed within ninety days from the date of the termination.
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