San Antonio Grandparents' Rights Attorney
The relationship between children and their grandparents can be one of the most important and valuable relationships in a child’s life. This is particularly true when one or both of the biological parents is not in a position to care for the child, or have failed to care for the child appropriately. There are times when a grandparent must step in for the best interest of the child.
It is a myth that grandparents have no rights in custody disputes. In fact, the law recognizes that grandparents often need to ask for custody or visitation with their grandchild. To be sure, the mother and father are given preference as the primary caretakers. But there are many circumstances in which a grandparent can gain rights in a child’s lives.
On this page, we discuss how we can help you gain either court-ordered custody of a grandchild or court-ordered visitation with a grandchild.
As discussed elsewhere on this website, custody, or conservatorship, comes in a few different varieties. If you are a conservator of a child, you have the right to have the child live with you or to have regular visitation with the child. You can click here for a more detailed explanation of how conservatorship works in Texas.
As a grandparent, you are not automatically a conservator when the child is born. However, you can petition the court to make you a conservator under certain circumstances. If the court makes you a conservator, you can ask the court for an order granting you primary custody or a visitation schedule with the child.
So, under what circumstances can a grandparent ask to become a conservator? There are four scenarios under which a grandparent could ask to become a conservator. A brief description of each follows.
- The child lived with you for 6 months. Under Texas Family Code 102.003(a)(9), a person who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition has standing to ask for conservatorship. This means that (i) the child has actually lived with you for at least 6 months, and (ii) the child has to still be living with you or at least was still living with you within the last 90 days. If you can show these two things, you have the right to go to court and ask that you be named the primary caretaker of the child.
- Deceased Parent. In the unfortunate circumstance that one or both biological parents have died, a grandparent can step in to take care of a child. Under Texas Family Code 102.003(a)(13), a grandparent has standing if both parents are deceased. Under Texas Family Code 102.003(a)(11), a grandparent has standing if one parent is deceased and the child and deceased parent lived with the grandparent for at least 6 months prior to filing.
- Agreement of Parent. Under Texas Family Code 102.004(a)(2), a grandparent can petition for custody if there is consent from either both parents, the surviving parent, or the managing conservator.
- Danger to the Child. Under Texas Family Code 102.004(a)(1), a grandparent can seek conservatorship if “the child's present circumstances would significantly impair the child's physical health or emotional development.” If the child is being abused or neglected, or is otherwise suffering physically or emotionally under the present circumstances, a grandparent can step in. A lot of grandparents base their requests on danger to a child because they do not qualify under the first three scenarios, but this is a high standard. You need to be prepared to present a strong case that the child is truly suffering at this time.
To be clear, these are four ways of getting into court as a grandparent seeking custody of a child. Once you are in court, you still have to convince a court that you would be the best caretaker of the child — better than the biological parents or anyone else who might be asking for custody.
As a grandparent, you have no natural rights to a child under the law, so you start from nothing and have to build from there. It is not always easy, but it can be done and is done all the time. If you believe you are in the best position to raise a child, consider your rights as a grandparent to ask for custody.
Even if you are not able to get custody of a child, you can still ask for court-ordered visitation, or possession and access. In fact, the Texas Family Code specifically allows for a Suit for Grandparent Possession or Access.
So, what do you have to prove to gain visitation rights to a grandchild? There are five things you must show:
- Parents rights not terminated. At least one natural parent must still have rights to the child.
- Significant Impairment. You must show that the child’s physical health or emotional well-being would be significantly impaired if your possession or access were denied. The courts start with a presumption that the biological parents are fit and are entitled to decide who should be allowed to see their child. Your task is to prove to the court that this presumption does not apply in your case, that the parent are not doing their jobs correctly, and your visitation is necessary for the child’s wellbeing. It is often helpful to show that you have helped raise the child or at least have a close relationship with the child and have been very involved in his or her life.
- Denial of possession. You must prove that the parents intend to completely deny you from having possession of or access to the child.
- Relationship. You must prove that you are actually a grandparent, meaning you are the parent of the child’s parent.
- Child’s Parent Unavailable. You must prove one of the following about the child’s parent that is your relation: (i) he has been incarcerated for at least 3 months, (ii) he has been judicially declared incompetent, (iii) he is deceased, or (iv) he does not have actual or court-ordered possession of or access to the child.
A grandparent can often play an essential role in a child’s life. In some cases, the grandparent can do more to raise a child than the actual parents do. If your grandchild needs your presence in his life but the parents are refusing to allow that, consider whether filing a suit for possession or access is right for you.
Contact our San Antonio Grandparents Rights Attorney
At Salmon Haas Law, we have deep experience representing grandparents in suits for conservatorship or possession and access. If you are in need of an attorney ready to fight you, contact our office today for a free consultation.