Grandparent and child

 

Custody disputes aren’t always between two parents. Sometimes, a dispute arises between parents and a grandparent regarding custody (“conservatorship”) or visitation (“possession”) of a child. For example, a grandparent might want custody because his or her adult child is addicted to alcohol or drugs. Alternatively, a grandparent might seek court-ordered visitation because his or her adult child is withholding a grandchild due to a dispute between adults. Regardless of the circumstances, when parents object, it is difficult for a Texas grandparent to obtain custody or possession of a child.

Parental Rights are Constitutional

The Supreme Court of the United States has recognized that the right of parents to direct the upbringing of their children is a fundamental constitutional right. Recently in In re C.J.C., the Supreme Court of Texas clarified the “fit-parent presumption,” which is the “presumption that a fit parent – not the court – determines the best interest of the child in any proceeding in which a nonparent seeks conservatorship or access over the objection of a child’s fit parent.” Thus, a grandparent seeking conservatorship or possession of a child over the parent’s objection must overcome significant legal hurdles.

Grandparent Conservatorship (“Custody”)

The first hurdle a grandparent must overcome to obtain conservatorship of a child is he or she must establish standing, or the right to bring suit.

Generally, unless both parents are deceased, a grandparent has standing to file an original suit affecting the parent-child relationship if: the grandparent has had actual care, control, and possession of the child for at least 6 months or the child and a parent have resided with the grandparent for at least 6 months. In either instance, the child must have resided with the grandparent within the 90 days preceding the filing of the suit.

Alternatively, a grandparent can establish standing to seek managing conservatorship by either (1) obtaining the consent of both parents, the surviving parent, or the managing conservator; or (2) showing satisfactory proof the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.

Once a grandparent seeking conservatorship establishes standing, he or she still must prove that appointing a parent as primary conservator would significantly impair the child’s physical health or emotional development. The grandparent must show specific, identifiable conduct by the parent that is likely to cause harm to the child’s physical health or emotional development. The burden is high, and it is not enough to show that the grandparent would be a better primary custodian.

Possession (Visitation)

For a grandparent to establish standing to request visitation, he or she must file an affidavit with his or her petition describing facts that demonstrate that denying visitation to the grandparent would significantly impair the child’s physical health or emotional well-being. The case will be dismissed unless the affidavit states facts that, if true, would be sufficient to meet the statutory requirements.

If the initial burden is met, the grandparent must prove that denying visitation would significantly impair a child’s physical health or emotional well-being. Simply showing the grandparent is or was very close with a grandchild is not sufficient, and it is also not sufficient to show the child would benefit from the grandparent having possession. The grandparent must show the child’s health or well-being would suffer if he or she did not have access.

While grandparents are an important part of many children’s lives, grandparent’s rights are very limited because parents have constitutionally-protected rights to make decisions for their children.

By Published On: September 21, 2021Categories: Family Law, PracticeTags: , , ,

About the Author: Claire James

Claire James is a trial lawyer whose practice focuses on helping businesses and individuals protect their most valued assets.