What Rights Do Grandparents And Other Third Parties Have In Texas?
As a general starting point, it should be noted that the United States Supreme Court has ruled that grandparents do not have a constitutional right to see or visit grandchildren. This is based on the general presumption that since parents have an automatic right to determine the best interests of their children, they are entitled to decide who does or does not have contact with their children.
In Texas, visitation generally refers to “access” (continuing contact) or “possession” (visiting) of a child. As long as a parent approves, grandparents can usually visit their grandchildren at any time. However, problems sometimes arise when parents restrict grandparents’ visitation or contact with the grandchildren. Since Texas law does not legally entitle them to see their grandchildren, some grandparents may choose to try and get a court order allowing visitation.
Getting A Court Order: Challenges For Grandparents
Grandparents must overcome many hurdles in order to get access or visitation to grandchildren over parents’ objections. The first of these hurdles is simply getting into court. Typically, courts will only hear grandparents’ visitation cases if a parent is:
- Found mentally incompetent by a court
- Not currently living with the child
Also, note that if the child has been adopted after both parents either died or put the child up for adoption, grandparents are not allowed to file a visitation petition.
Once the grandparents have gained court access, the court may order visitation if it would be in the child’s best interests, AND one of the following conditions exist:
- The child’s parents are divorced.
- The parents abused or neglected the child.
- A parent has been incarcerated, found incompetent or died.
- A court terminated the relationship between the child and one of the parents.
- The child has lived with the grandparent for at least six months.
Remember that the requirements listed above refer only to grandparent visitation — custody requirements are different.
Grandparents Seeking Custody
In situations where a grandchild is being raised in an unhealthy environment — perhaps because of domestic abuse or a parent’s chemical dependency or mental health problems — many grandparents want to step in to become their grandchild’s primary caregiver.
Child Custody Lawsuits
There are a number of ways to accomplish this goal. The most straightforward is to have the parents execute a power of attorney giving the grandparent the ability to take physical custody of the child and make important decisions about his or her upbringing. However, powers of attorney are generally temporary and can be rescinded by the parents at any time.
If the parents do not consent, or if the grandparent wishes to pursue permanent custody, the grandparent will have to go to court. The Texas Family Code allows grandparents to file an original lawsuit seeking child custody under two circumstances:
- The first is when the grandparent can show that the child’s present living conditions would cause damage to the child’s physical or emotional health.
- The second is when the child’s parents or legal guardian agree the child should live with the grandparent.
In order to have the legal ability (called “standing”) to bring an original lawsuit, the grandparent must have had significant past contact with the child. However, grandparents also have the ability to join (called “intervene”) in a child custody case initiated by a parent or someone else.
Other Third Parties Who Seek Custody Rights
A court may in certain circumstances award custody of a child to a step-parent, for example in cases where the step-parent is the only mother or father that the child has known, or where the child has become part of a family unit together with the step-parent’s biological children.
Courts have been called upon to evaluate the claims of non-parent third parties in a variety of situations. Usually, the award of custody is based upon the child’s best interest and a showing that the biological parents are unfit. Some examples include:
- Paternal and maternal aunts and uncles have been awarded custody in circumstances where the natural parents were abusive or where the aunt and uncle were long-time guardians of the child and the child had a strong emotional bond with that couple’s natural child.
- Companions of deceased natural parents, where the live-in companion cared for and provided a home for the children for several years and had essentially become a step-parent to them, and the biological mother had abandoned the children.
For information on same-sex custody, click here: Same-Sex Custody.