Grandparents are the only people under the Texas Family Code who can file a suit strictly related to possession and access, but they can only do it in very specific, limited circumstances.  Filing suit to request possession and access is different than filing suit to request conservatorship.  A suit for possession and access only requests a possession schedule that allows the grandparents to have set visits with the children, whereas a suit for conservatorship also includes requests for certain rights related to the children.

Under the Texas Family Code, a grandparent may request possession and access only if: (1) at least one parent of the child has not had rights terminated; (2) the grandparent can overcome 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 access would significantly impair the child’s physical health or emotional well-being; and (3) and the grandparent’s child (the parent) has been incarcerated for the requisite amount of time, has been declared incompetent by a court, is dead, or does not have actual or court-ordered possession of or access to the child.  In other words, if a child has two parents who are seeing the child, the grandparents have no rights to sue for possession and access, even if the parents are completely cutting them out of the child’s life.

Another requirement for grandparent possession and access is that the parent must be completely denying access to the grandparent.  As long as the grandparent gets to see the child on a rare occasion, that is enough to kill a claim for grandparent possession and access.

A grandparent may have standing to file suit for conservatorship without having standing to file suit for possession and access.  For a discussion of when a grandparent can sue for conservatorship, check out this blog post.

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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In Texas, if you are not married when your child is born, there is no legal father.  The biological dad is not legally the father until a court adjudicates him to be so.  (Prior to a court finding that he is the legal father, the unmarried biological father is referred to as the “alleged father.”)  The bio dad can (and should) sign an Acknowledgment of Paternity form when the baby is born.  Many hospitals now have this form on site when a baby is born.

In order  for the biological father to obtain legal status as the father, someone must file a paternity suit.  Either parent can file a paternity suit, as can the Attorney General.  (Usually the Attorney General will file suit when Medicaid is involved because they want the government to be reimbursed for medical expenses.)  This is the case even if everyone admits he is the dad and there is no dispute.  This is also the case even if dad signed a valid Acknowledgment of Paternity.

The paternity suit serves several purposes.  First, it allows the Court to formally adjudicate the biological dad as the legal father.  If everyone admits he is the father or if he signed an Acknowledgment of Paternity, then the Court will adjudicate him to be the father.  If either side contests paternity, the Court will order a paternity test.    Other issues typically involved in a paternity suit are conservatorship (rights and duties), possession and access (the schedule for when each parent has the child), and child support.

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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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As I described in my post on conservatorship, any order involving a child custody issue in Texas will cover two issues:  conservatorship and “possession and access.”  Conservatorship deals with rights.   The section on “possession and access” sets forth the schedule for when each parent has possession of the child.  This is the part of the order that most people think of when they use the term “custody.”

The vast majority of orders will start the possession and access section by stating that possession shall be as agreed by the parties.  This gives the parents the freedom to adjust the schedule to fit their needs and the needs of the child.

The order will then go on to set forth a specific schedule for visitation that applies in the absence of an agreement.  It could include a standard possession order, an expanded standard possession order, or some other customized order crafted for the specific family.  In Dallas County and Collin County, you can generally create any reasonable schedule you want as long as the parents agree it is in the best interest of the child.  If the case is not agreed and ends up with a trial, most judges will order either a standard possession order or an expanded standard possession order (assuming there is no family violence or other reason to restrict someone’s access to the child).  Some people get along well and agree to deviate from the schedule on a regular basis, and others stick rigidly to the schedule.

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The majority of new divorce or child custody clients who walk into my office say they want either “joint custody” or “sole custody.”  The first question I ask is, “What do you mean by that?”  The legal world has different definitions than the ones most people use in their everyday vocabulary, which can make starting the custody process a little confusing.

In Texas, you will not see the term “custody” in a divorce decree (or in any other child custody order).  Instead, the order will deal with “conservatorship” and “possession and access.”  (However, the Attorney General does refer to parents as the “custodial” and “non-custodial” parents.)

“Conservatorship” deals with the rights and responsibilities of the parents (or other legal caretaker of the child.)   In most situations, the parents are named “joint managing conservators.”  This generally gives the parents pretty equal rights.  For example, as joint managing conservators, both parents would normally have the right to consent to invasive medical procedures, make decisions regarding the child’s education, etc.  The rights can be tweaked, based on the circumstances of the parents.

In certain situations, often involving domestic violence, drug or alcohol abuse, or an absentee parent, one parent is named the “sole managing conservator” and the other is named a “possessory conservator.”  Again, this designation relates solely to the rights of the parent and has nothing to do with how often the parent sees the child.  The sole managing conservator is given certain exclusive rights, such as the right to consent to an invasive procedure and the right to make educational decisions.

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