3 Ways That Grandparents Can Get Custody of Grandchildren

A grandparent walking with their grandson - Hammerle Finley Law Firm

In recent years, the traditional nuclear American family that prevailed in the years following World War II – father, mother and children all living together – has undergone a number of societal strains and changes, including the frequency of divorce and an increasing number of single-parent households. Consequently, census figures reveal that today, 1 in 10 American children live with a grandparent, and that statistic includes approximately a quarter of a million children in Texas.

Generally, courts take the position that parents have the right to care for and determine what is right for their children. When a third party, including grandparents, seeks custody, the court tends to balance the parents’ rights with the child’s best interests, which means that grandparents who believe their grandchild would be better off living with them must present a compelling case to the court.

Child Custody Laws for Grandparents in Texas

Child custody laws vary by state, and under Texas law, grandparents do not have any automatic right to custody of their grandchildren. However, the law does allow grandparents to seek custody of grandchildren under certain circumstances.

Grandparent Custody Through Power of Attorney

The easiest way for grandparents to be awarded custody is through a power of attorney signed by the child’s parents giving the grandparents the authority to decide where the child lives and to make important decisions on behalf of the child. While this is the simplest approach to securing custody, its great downside is that it is always essentially a temporary arrangement as the parents can change their minds and revoke the power at any time.

Managing Conservatorship

In lieu of a power of attorney, grandparents in Texas can seek custody of their grandchildren through what is called a managing conservatorship. Under this arrangement, there are four reasons grandparents can file for custody of a grandchild in Texas.

  1. The child is living in an emotionally or physically dangerous environment.
  2. The child’s parent(s) or legal guardian have either agreed to let the grandparents have custody or have filed a legal suit to that end.
  3. The grandparents have had possession and have been caring for the child for 6 months or more and have lost possession within 90 days of filing the suit.
  4. The child and the child’s parent or other legal guardian have lived with the grandparents for 6 months or more and did so within 90 days of filing the suit.

If the court grants custody under managing conservatorship, the child would live with the grandparents, and they would have the authority to make important decisions regarding the child’s life in matters such as education and religious instruction.

Possessory Conservatorship

Under Texas law in matters involving parents’ vs. grandparents’ child custody, there is another alternative known as possessory conservatorship. This arrangement arises in situations where the grandparents don’t feel the need for full custody, but want to be involved in making decisions about the child’s life.

In this case, the court may grant possessory conservatorship that allows grandparents to provide input – but not necessarily the final say – on things such as non-invasive medical treatment and moral or religious training. It may also entitle grandparents to overnight visits.

In Texas, grandparents can file for possessory conservatorship in two ways, either through an original lawsuit or through grandparents’ intervention.

  1. Original lawsuit – To file for possessory conservatorship via an original lawsuit, grandparents must meet requirements 3 and 4 of managing conservatorship.
  2. Intervention – To file for possessory conservatorship by way of intervention, the case must be filed during an ongoing lawsuit in which someone else has asked the court to say who the child should live with. Grandparents must have spent demonstrably significant amounts of time with the child and must also prove that living with either parent would be physically or emotionally dangerous.

Grandparents’ Visitation Rights in Texas

Finally, there is also the question of the visitation rights of grandparents, a family law issue that may come up when a marriage ends in separation or divorce. If you are fortunate enough to get along well with one or both the parents, you might work out an informal arrangement giving you visitation rights and allowing you to continue to be a part of your grandchild’s life.

Unfortunately, in situations where emotions are running very high, a parent may limit the grandparents’ contact with the grandchildren. In this situation, a court can authorize grandparent visitation if it is in the child’s best interests and one of the following circumstances exists.

  1. The parents are divorced.
  2. The parent abused or neglected the child.
  3. The parent has been incarcerated, found incompetent or died.
  4. A court order terminated the parent-child relationship.
  5. The child has lived with the grandparent(s) for at least six months.

Assistance from a Family Law Attorney

It should be apparent from this summary that questions related to grandparents’ rights under Texas law, especially in the matter of grandparents’ custody, are extremely complex. If these issues arise in your family, you would be well advised to seek the services of an experienced family law attorney who can give you expert assistance and work closely with you to achieve an outcome that is best for you and your grandchild.