One of the best rewards for parenting is becoming a grandparent. Most people look forward to this role and relish spending time with their grandchildren. But not every grandparent’s story is joyful. You may find yourself in a situation where you are not allowed to visit your grandchildren. Or perhaps you are so concerned for them that you think you should have custody. But is there anything you can do? Legally speaking, grandparents do not have an easy time of it. But as you will see, there is hope. So today’s blog will answer the question, What rights do grandparents have in Texas?
Terms to Know: Conservatorship, Access, and Possession
We should start by explaining some legal jargon because Texas law can be complicated. Most people are familiar with the term “custody.” However, Texas courts don’t use the word in the same way. Instead, they define someone who has custody of a child as a conservator. Courts also describe visitation rights as access. And when the parent is visiting with his or her child, the law refers to it as possession.
Ideally, the divorced parents will have equal say in making decisions regarding the child’s education, medical care, place of residence, and overall well-being. The law refers to this as a Joint Managing Conservatorship.
However, the court also may name a sole managing conservator. This person has exclusive decision-making rights, and the child will live primarily with him or her. Courts also refer to the sole managing conservator as the custodial parent.
You don’t have to know every aspect of the law. But grandparents who want to see their grandchildren or become a conservator should have at least some familiarity with these legal terms. To keep things simple, we’ll use the terms everyone understands, custody and visitation.
Grandparents Have Rights in Texas, But It Is an Uphill Battle
Now the bad news: Grandparents who are trying to gain visitation rights or custody of their grandchildren face an uphill battle. There are a couple of reasons for this.
First, the Texas Family Code states that courts should always make decisions based upon the child’s best interests. This approach obviously makes sense. However, keep in mind that it also means the court will not put your interests first. You may miss seeing your grandchildren, but in the eyes of the court, that is not a valid argument.
In addition, Texas law starts from the presumption that unless a parent has been proven to be unfit, he or she should have the right to decide what is best for his or her children. The law states that anyone wanting to be involved in the upbringing of a child must first “overcome the presumption that a parent acts in the best interest of the parent’s child.”
Again, this idea probably sounds appealing. But it also means that grandparents do not automatically have the legal right to see their grandchildren.
Grandparents Have the Right to Request Custody or Visitation in Texas
The Texas Family Code Sections 153.432 to 153.434 grant a biological or adoptive grandparent the right to file a suit requesting custody of a child or visitation rights.
But as noted, it is not enough to merely say you want to spend time with your grandchildren. The law also states that the grandparents must demonstrate that denying their request “would significantly impair the child’s physical health or emotional well-being.”
In addition, the grandparent must provide physical evidence of this concern at the time of the filing. This means the court will not accept a story someone has told you. You also cannot introduce evidence you uncovered after filing the request.
Clearly, these are high standards to meet. But as we noted, Texas Law operates from the assumption that parents know what is best for their kids. Even so, grandparents can be successful in winning visitation rights and gaining custody of their grandchildren.
Laws Identifying the Rights of Grandparents in Texas
Texas family law identifies several circumstances when the court can permit grandparent visitation rights and custody. These may include:
- If the child has lived with the grandparent for at least six months;
- the parent has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
- If a court order has terminated the rights of the parent;
- If the parent has been found incompetent by a court;
- If the parent does not have possession of or access to the child;
- If the parent abused or neglected the child;
- If the parent is deceased.
Grandparents should take note: These statutes don’t guarantee that you will be granted custody or visitation rights. They only give you the right to make the request. And of course, the court must decide that granting you these rights is in the child’s best interests. Read our recent blog, Grounds for Involuntary Termination of Parental Rights.
In Some Situations, Grandparents Do Not Have the Right to Get Involved
Texas family law also identifies the circumstances when a grandparent cannot request custody or visitation rights. These include:
- If both biological parents of the child have died;
- If both parents have had their parental rights terminated;
- If a parent has relinquished their parental rights by signing a waiver or affidavit;
- If the grandchild has been adopted by someone other than the child’s step-parent or is the subject of a pending suit for adoption.
Another potential roadblock to grandparent visitation rights in Texas is if the parents cannot be located. This may sound backward, but again, Texas law goes to great lengths to protect the parent-child relationship. Read our recent blog, Can You Relinquish Custody of a Biological Child?
The attorney can help them determine if they have standing (legal grounds) to submit a petition asking to be named conservator of the child.
As a custodial parent, you are eligible to apply for child support. However, you also have a legal responsibility to care for the best interests of the child, including his or her physical health and overall well-being.
If You Suspect Your Grandchild is in Danger, You Have the Right to Take Action
Are you worried about the emotional or physical health of your grandchild? In this case, you don’t need to worry about the rights of grandparents in Texas. Instead, you have a legal obligation to report your concerns to the Texas Department of Family and Protective Services.
However, if you are considering filing a false report as a way to gain custody of your grandchildren, think twice. Someone who knowingly files a false report of child abuse or child neglect has committed a felony. The punishment can be up to $10,000 and two years in prison.
The Most Effective Way to Exercise Your Rights as Grandparents May Be to Avoid the Courts
As we have seen, Texas law gives priority to the rights of the child’s parents. And grandparents may have a difficult time gaining custody or even access to their grandchildren. An experienced family law attorney can help you, but there may be a better way: Talk with the parents.
So if your daughter has cut off access to your grandchildren, it is worth considering why she has done this. For example, maybe she knows you do not approve of her husband, or she is concerned you are trying to indoctrinate your religion in her children.
Obviously, there are some cases where the parents are just being spiteful or petty. But sometimes, they really do have a good reason. So before you seek the advice of an attorney, you might try having an honest conversation with your child. It may be a more effective approach, and it definitely will be less costly.
A Family Law Firm Experienced in Fighting for the Rights of Grandparents in Texas
The Maynard Law Firm, PLLC, never stops working for you. We will fight to make sure that you receive the best possible arrangements while being sensitive to the concerns of your children and grandchildren. We also have extensive experience in divorces and custody cases.
For experienced, compassionate legal representation, contact us today at 817-335-9600.
- Texas Attorney General’s Office Grandparents’ page
- The Legal Hotline for Texans provides services specifically for Texas residents age 60 and older. Call 800-622-2520 or visit their website.