Authored By: Texas Legal Services Center
In Troxel v. Granville, the United States Supreme Court ruled that the Due Process Clause, "protects the fundamental right of parents to make decisions concerning the care, custody and control of their children." Thus, as a grandparent your "possession and access" (visitation and custody) rights are limited. In other words, grandparents do not have a constitutional right to see their grandchildren.
What is custody?
Custody can mean different things depending on the circumstances. There are three kinds of legal custody of a child that can be ordered by Texas courts.
- A managing conservatorship means being the person the child lives with and the person that makes most decisions about how to raise the child.
- A possessory conservatorship means getting to visit the child and helping to make some decisions about how to raise the child.
- A joint managing conservatorship, means the child mainly lives with one parent, but both parents together make decisions about how to raise the child.
The court can give some jobs to one parent and other jobs to the other parent.
Example:The court could order a joint managing conservatorship where the child mainly lives with the mother, but spends every Wednesday night and every other weekend with the father. And, the court could order the mother to pay for the child's health insurance but the father to pay for the child's school lunches.
Can I get legal custody of my grandchildren?
Unless the child's parent(s) sign a power of attorney giving you the power to say where the child lives and to make decisions for the child, you must go to court to get custody over a grandchild. This means you have to file a lawsuit in a court asking the court to give you custody of the child.
To file an original lawsuit asking for custody:
- The grandchild has to have lived with you for 6 months. If the child lived with you for 6 months but is now living with someone else, the child must have moved out within 90 days of when you file the lawsuit. or
- A court has to have named you as the child's guardian; or
- You must be able to prove that the child is being hurt because of the child's living conditions or by the people caring for the child; or
- Both of the child's parents, a surviving parent, the child's court appointed managing conservator, or the child's custodian have to agree that the child should live with you.
Sometimes, someone else has already filed a lawsuit asking a court to say who the child should live with. To enter an existing lawsuit is "to intervene." A grandparent who wants to intervene in a lawsuit must:
- Have had a lot of past contact with the child and
- Be able to prove that the child is being hurt because of the child's living conditions or by the people caring for the child.
What does the court use to decide who should get custody of children?
The court has to answer the question, "What is in the best interest of the child?" The court decides each child's case individually. However, a grandparent who wants the child to live with them must beat the "parental presumption." The parental presumption says it is usually best for children to be raised by their parents. Judges know that nobody's parents are perfect. So, It is not enough to show that a child's parents are not so good. A grandparent must prove that living with the parents is very harmful to the child.
What might the court look at to decide what is in the best interest of a child?
The court may look at things like:
- What the child wants,
- What the child needs for physical and emotional health,
- If the child is in danger,
- If the parents or grandparents would be good at raising the child,
- If the child can get public benefits,
- If the home is stable and safe,
- The acts or omissions of the parent(s), for example, if the parents have committed crimes or have not cared for the child,
- Any excuses the parents have.
The judge can look at almost anything else that it thinks is important.
How does the "parental presumption" affect my rights as a grandparent?
The parental presumption says that it is usually best for children to live with their natural parents.
To beat the parental presumption a grandparent has to prove:
- The child will be hurt by living with the parents; or
- The parents have a history of family violence; or
- The parents voluntarily sent the child to live with someone else for a year or more and within 90 days before the suit was filed in court.
A grandparent has to prove that some specific thing the parents are doing is hurting the child emotionally or physically. This proof must be strong because close calls will go to the parent. If the parent is a proper person to have custody right now, the court will not use things the parent did in the past against them. For example, if the parent used illegal drugs in the past but stopped using drugs, then the court can say that the child can live with the parent.
Possession and Access
What is possession and access?
Generally possession and access means getting to call and visit the grandchild.
My child won't allow me to visit my grandchildren, what are my rights?
The United States Supreme Court has ruled that the right of a parent to decide who his or her child has contact with is one of the fundamental rights of parenthood. This is bad news for grandparents who do not get along with their grandchildren's parents. If the parents will not let the grandparents visit the child, the grandparents have to prove that the parents are unfit or that the child is being hurt by not being able to see the grandparents. This is very hard to prove.
Can I ask a court for the right to visit my grandchildren?
To get a court order allowing visits, a grandparent must file a lawsuit under Chapter 156 of the Texas Family Code. How to file a lawsuit is beyond the scope of this publication. It is best to talk to an attorney.
To win, a grandparent must prove that the child's parent:
- Has not had his or her parental rights terminated;
- Has been in jail or in prison at least 3 months before the lawsuit was filed;
- Has been found to be incompetent by the court;
- Is dead; or
- Does not have court ordered possession or access to the child.
When can I not request visitation of my grandchildren?
A grandparent cannot request visitation if:
both of the biological parents of the grandchild:
- had their parental rights terminated;
- died; or
- gave the child up for adoption; and
- the grandchild has been adopted or is the in the process of being adopted by a person other than the child's step parent.
Where do I go from here?
If the child is in immediate danger, you should call 911 or child protective services. Otherwise, it is best to try to work things out with your family members. If you are cannot agree, then you should talk to an attorney.