In Texas, can grandparents gain court-ordered custody of or access to their grandchildren?

The short answer is yes, it is possible—but the legal standard will be difficult to meet except in rare situations. A grandparent who petitions the court for custody or visitation must meet two consecutive legal burdens in order to prevail: first, the grandparent must establish standing; second, the grandparent must prove that the relief sought is in the child's best interest.

In what situations will a grandparent have standing to file suit?

The Texas Family Code provides three separate avenues to standing for grandparents: 

1. "General Standing" statute: The general standing rule of the Texas Family Code provides a laundry list of narrowly-defined circumstances in which an individual may file an original suit affecting the parent-child relationship. Most notable and often most useful for grandparent cases is a section that allows a suit for conservatorship (custody) to be filed by any 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." This avenue is most often used in cases where a grandparent has had possession of child and has primarily raised a child.

2. "Significant Impairment" statute: If a grandparent does not have general standing, a grandparent or other blood-relative is allowed to file a custody suit under Texas Family Code §102.004 if it can be proven to the court that "the child's present circumstances would significantly impair the child's physical health or emotional development." In other words, the grandparent's burden is to show that the child's parents are unfit.

3. "Possession and Access" statute: In contrast to the above statutes that allow standing to file a custody suit, the Texas Family Code also allows a grandparent to file a suit only for possession or access. For a grandparent to prevail under this rule and gain court-ordered visitation with the grandchild, the grandparent must prove, among other things, that "denial [to grandparent] of possession of or access to the child would significantly impair the child's physical health or emotional well-being." This is a very difficult standard to meet.

Why are the laws so restrictive on grandparents? Is this just a Texas thing?

Twelve years ago, the United States Supreme Court's ruling in the Troxel case reaffirmed the principle that parents have a fundamental constitutional right to raise their children as they please, and that the state must not interfere except in extraordinary situations. Following that ruling, many states, including Texas, were forced to amend their grandparent visitation laws, or at least tailor their application to comply with Troxel. A major point of the Troxel decision was that parents have the right to decide with whom their child will have contact—in other words, it is up to the parents to decide whether and how they will allow the grandparents to see the child. A parent's decision to exclude the grandparents from the child's life is unlikely, by itself, to result in a finding of "significant impairment." Additional unique circumstances or serious signs of unfit parenting are usually necessary to bolster a grandparent's case.


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