In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

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In order to sue to become the conservator of a child, a person must have standing.  In Texas, there are several ways that a grandparent can have standing to sue for conservatorship.  First, if the grandparent has had “actual care, control and possession” of the child for at least six months before filing the suit, he or she has standing.  Courts disagree on what exactly constitutes actual care or actual control.  If a parent has voluntarily given the child to the grandparent, this requirement is clearly satisfied.  The possession must not have been in violation of a court order.  The six-month period must end no more than 90 days before suit is filed, but the six months do not need to be continuous.

A grandparent (or any relative within a third degree of consanguinity) also has standing if the child’s parents are deceased.

A grandparent has standing if he or she can prove that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  Grandparents often use this provision to obtain standing to file suit when the parents are abusive or have drug or alcohol issues.

Finally, grandparents have standing to file suit if the child’s parents have consented to the suit.  This allows for parents to voluntarily give the grandparents custody when they are unable or unwilling to care for the child.  In this situation, an order appointing the grandparents as conservators can be obtained quite quickly.

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In order to file a child custody suit, a person must have “standing” to bring the suit.  Grandparents do not automatically have standing, but they do in certain situations.  The most common situation where grandparents have standing to sue for custody is if the child is in danger.  The grandparents must prove that the child’s current circumstance will “significantly impair” the child’s physical health or emotional development.  For example, if the parents have a substance abuse problem or are abusive, the grandparents can legitimately claim standing under this provision.

Additionally, grandparents have standing to sue for custody if they have had “actual care, control and possession” of the child for at least six months before filing the suit.  In other words, if the child has been living with the grandparents and the grandparents have been the caregivers for the child for at least six months, those grandparents now have standing.  If both a parent and a grandparent have shared the care giving responsibilities, that is not enough to confer standing on the grandparent.  The six-month period must end no more than 90 days before the suit is filed.

If the child’s parents have died, the grandparents have standing to file suit.   This rule also applies to other relatives within the third degree of consanguinity.  That includes brothers, sisters, nieces, nephews, aunts, uncles, grandparents, and great-grandparents.

Finally, grandparents have standing if the parents consent to the suit.  This is actually a relatively common occurrence.  When parents are unable or unwilling to care for their children, they often allow the grandparents to have custody.  If the parents have essentially passed on their parental responsibilities to the grandparents, it is advisable for the grandparents to file suit and obtain a formal order.

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