Grandparents’ Rights

Can a grandparent get custody of his/her grandchild? If not custody, may a grandparent get access to his/her grandchild? Do you have visitation rights as a grandparent? The answer to these questions is yes. However, that’s not to say it is an easy thing to do.

The most well-known grandparent rights case is the United States Supreme Court case of Troxel v. Granville. The Supreme Court held that in grandparent access cases, the grandparent must overcome the presumption that “a fit parent acts in the best interest of his/her child.”

Texas law goes even farther by stating that the grandparent must show that the denial of access to the grandparent would significantly impair the child’s physical health or emotional development. Even though it’s possible, a grandparent will need to jump through many hurdles to get custody or access to his/her grandchild. For example, the grandparent must have standing, and the grandparent must show that the relief being asked for is in the child’s best interest.

How Does a Grandparent Get Standing to File a Custody Suit?

The Texas Family Code has a list of situations in which a person has standing to file an original suit affecting the parent-child relationship. The situation attributable to grandparents is the Family Code section that allows a custody suit to be filed by any person 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.” This rule is used in situations when a grandchild has been living with the grandparent.

What If the Grandchild Was Not Living With the Grandparent? Is There Any Other Way for the Grandparent to Get Custody of His/Her Grandchild?

If a grandparent doesn’t have general standing, a grandparent can file for custody under Texas Family Code §102.004 if the grandparent can illustrate that “the child’s present circumstances would significantly impair the child’s physical health or emotional well-being.” The grandparent must show that the parent is not a fit parent to be raising their child. 

What About a Grandparent Just Getting Possession and Access to His/Her Grandchild?

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
  • 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 (a) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (b) has been found by a court to be incompetent; (c) is dead; or (d) does not have actual or court-ordered possession of or access to the child.

Contact a Grandparents’ Rights Attorney in Texas Today

Before the Troxyl case, grandparent access suits were generally easier. Today, it takes a great deal more skill, knowledge, and even facts to get custody or access to a grandchild. It’s no longer an easy area of family law. In fact, these cases can be very complex and are suited for specialized attorneys. Call Orsinger, Nelson, Downing & Anderson today to schedule an appointment with a highly experienced grandparents’ rights lawyer.

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