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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In certain circumstances, a grandparent can file suit for “possession and access” with a grandchild.  Not every grandparent has a right to access to a child.  Texas law presumes that the parents have the right to make the decisions about whether or not a grandparent sees a grandchild.  Grandparent access is not the same as grandparents filing for conservatorship or to adopt a child.

In order to obtain possession and access rights, a grandparent must prove: (1) at least one of the child’s parents’ rights have not been terminated; (2) the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s access or possession were denied; (3) the parent intends to completely deny the grandparent from having access to the child; (4) the grandparent is related; and (5) the child’s parent who is the grandparent’s child is unavailable.

If the child is living with a parent, there is a “fit parent” presumption.  This essentially is a presumption that the parent is acting in the child’s best interest by refusing to allow grandparent access.  Thus, the grandparent must prove significant impairment to overcome that presumption.  If a nonparent has custody, many courts have held that grandparents do not need to show significant impairment.

To show that the child of the grandparent is “unavailable” as the parent, the grandparent must prove one of the following (1) the child’s parent has been in jail for at least three months before the petition was filed; (2) the child’s parent has been declared judicially incompetent; (3) the child’s parent is dead; or (4) the child’s parent does not have actual or court-ordered possession of or access to the child.  Therefore, if your child is in the picture and either parenting the child or legally allowed to parent the child, then you cannot file for grandparent access of your grandchild.

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