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Texas Law Concerning Child Custody by Grandparents

In some unfortunate situations, parents are not adequate caretakers for their children. In response, grandparents may step forward hoping to get custody of their grandchildren to provide the care they need and preserve extended family ties.

U.S. Constitution

Attempting to get custody of a child from his or her parents is not an easy task, however, considering that the U.S. Supreme Court recognizes that parents have a constitutional right to care for and control their children. Interference with that right can be a daunting legal task. However, Texas law does allow it in extreme circumstances and recognizes limited grandparents’ rights.

Texas presumption of parental custody

Not surprisingly, Texas law contains a legal presumption that primary custody (in Texas called managing conservatorship) should be with the parents unless the parents have been involved in family violence or “the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development …”

Grandparent standing to sue for custody

Texas gives standing, or the right to file a lawsuit, to a grandparent (or “another relative of the child-related within the third degree by consanguinity”) to request custody of a grandchild if the court has “satisfactory proof” of either of the following:

  • The grandchild’s “present circumstances would significantly impair the child’s physical health or emotional development.”
  • The grandchild’s parents, conservator, or custodian consent or filed the suit.

Appeals court weighs in

Interpreting this statute, the Court of Appeals of Texas sitting in Houston found in the April 2014 opinion of In re K.D.H. that a grandmother had shown satisfactory proof of a threat to the child’s “physical health or emotional development” to give the grandmother standing to request managing conservatorship.

The grandmother had alleged several issues that concerned her, including a history of parental alcohol and drug addiction, a lack of parental affection toward the child, long absences of the parents from the child, the mother’s previous convictions for child endangerment and drunk driving, the father’s incarceration, the mother has had other children placed in state care, the mother has tested positive for marijuana during pregnancy, the parents having had an angry and volatile argument while holding the infant child and more.

The court said that the grandmother had standing to sue for custody because she had presented enough evidence to allow “reasonable and fair-minded people” (or, in other words, the jury that she had requested) to determine that she should be given custody because of the threat of significant impairment to the infant’s health and development.

Another basis for standing

Another route to grandchild custody is through the general grant of standing to file suit for custody (called a “suit affecting the parent-child relationship”). The statute lists several categories of people who can sue for custody in Texas, a few of which a grandparent could fall into such as being a close relative when the parents are both dead or someone who has cared for the child for “at least six months ending not more than 90 days” before the petition is filed.

Legal counsel important

This area of Texas and federal constitutional law is extremely complicated, but the stakes to parents and grandparents are very high where their children and grandchildren are concerned, which the law reflects. Any grandparent or parent involved in a Texas child custody dispute should speak with an experienced family lawyer about legal rights and remedies in the particular family situation.