Fighting For Grandparents Rights
Nothing is more difficult on a grandparent than to observe circumstances they believe that their own children, as parents, have created that put their grandchild’s well being at risk. Even more awkward is the natural tension that arises between grandparents and the parents of their grandchildren when disagreements arise about what’s in the children’s best interests or how to raise the children. This dynamic can become more tense with life changes, such as the death or a parent, divorce, and when a parent of the grandchildren marry and a step-parent steps into the picture or adopts the children.
Texas law presumes it is in a child’s best interest that parents be appointed as managing conservators of their children. Thus, it is difficult for grandparents to have the right to seek legal custody or possession and access to their grandchild. To do so, generally grandparents must meet what is known as standing requirement which for grandparents his fairly high.
Meeting the Standing Requirements
It is extremely important to carefully evaluate with an experienced grandparents rights attorney the issue of grandparent standing. Just like a party to any civil case, a grandparent must show that he or she has the “right” to prosecute their case (i.e. seek custody or visitation). This right is known as “standing”. If a grandparent cannot meet both the procedural and substantive requirements of standing, the grandparent suit will be dismissed. In other words, lose the initial standing requirement and you’re out.
There are three forms of rights that grandparents may seek in relation to their grandchild: (1) managing conservatorship; (2) possessory conservatorship; and (3) possession and access (i.e. “visitation rights”). Each has their own unique requirements which are further discussed below.
When Grandparents Seek Managing Conservatorship
A grandparent seeking standing to be appointed as a grandchild’s managing conservator, which is essentially asking the court to place the grandparent in the same legal position as a parent and have the same rights and duties as that of the child’s parent (such as to education, medical, and mental health decisions) or even to seek “primary” custody of the grandchild. Grandparents can “acquire” standing when seeking managing conservatorship in one of two ways.
(1) Grandparents may have standing under the general standing statute.
Grandparents have their own unique statute, to be discussed below, but may also meet the general standing requirement for any party seeking to acquire managing conservatorship of a child. Texas Family Code § 102.003.
The two most common methods under the general standing statute are when a person 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” or when the child has resided with the grandparent “for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition.”.
(2) Grandparent Standing Statute
However, the Texas Family Code also contains a special grandparent standing provision that allows a grandparent to seek managing conservatorship of a grandchild. See Texas Family Code 102.004.
This statute provides that, in addition to the general standing requirements in 102.003, a grandparent may have standing to seek managing conservatorship of a grandchild if (1) both parents, the surviving parent, or the managing conservator filed the petition or gave consent or (2) the grandparent being awarded managing conservatorship is “necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.” This is known as the “significant impairment” standard.
Under this standard, the Texas Supreme Court in 1990 ruled that simply presenting evidence that a grandparent would be a “better conservator” of the grandchild is insufficient to support the appointment of a grandparent as a managing conservator of a grandchild in preference to a parent. Lewelling v. Lewelling 796 S.W.2d 164 (Tex.1990). This typically is the case when grandparents believe they have more financial stability and opportunity to provide a better quality life for their grandchildren than perhaps the parents of the grandchildren.
In order to meet these requirements, the grandparent is required to present convincing evidence to the court that the significant impairment standard has been met. In other words, lose the initial standing requirement and you’re out. Therefore, it is extremely important to carefully evaluate with an experienced grandparents rights attorney the issue of standing. As in any court case, a grandparent must show that he or she has a right to prosecute their case (i.e. seek custody or visitation rights), known as “standing”.
(3) Grandparent Affidavit Requirement
When a grandparent files suit, they are required under Texas law to file an affidavit, along with the Original Petition that sets forth the facts they believe meet this standing requirement. In the family law world, we call this the “grandparent’s affidavit”.
The drafting of this affidavit is critical and cannot be understated because the statute requires that the court “deny the relief sought [by the grandparent] and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under Section 153.433.” See Texas Family Code 153.432. In other words, if the Court finds on the face of the affidavit that the facts asserted by the grandparent affidavit do not meet this “significant impairment” standard, a requirement for grandparent standing, the Court is required to dismiss the grandparent’s lawsuit.
When Grandparents Seek Possessory Conservatorship
The grandparent standing statute found in Texas Family Code § 102.004 also permits grandparents to seek possessory conservatorship. Possessory conservatorship is a type of conservator with rights to possession and access to the grandchild and any other rights of a managing conservator, as determined by the court considering the specific facts and circumstances, of a managing conservator.
However, unlike managing conservatorship, grandparents are prohibited from filing an original suit which seeks possessory conservatorship. A grandparent seeking possessory conservatorship may only do so by intervening in an existing custody suit and not by original suit.
Yet, a grandparent seeking to intervene in an existing suit related to custody will must still meet a standing requirement. A grandparent will only be granted standing and allowed to intervene if the grandparent can present sufficient proof that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. See Tex. Fam. Code 102.004(b).
When Grandparents Seek Only Possession or Access to Grandchild
Finally, a grandparent may file an original suit or a suit for modification of a prior order wherein the grandparent seeks only rights to possession or access (i.e. “visitation rights”) to a grandchild. Texas Family Code § 154.433, known as the “grandparent access statute” grants grandparents access rights, without appointing the grandparents as a managing or possessory conservator over the grandchild.
The standards by which the court is to decide whether grandparent access should be granted are set forth in the following section, Tex. Fam. Code § 153.433, which provides that the court may order reasonable possession of or access to a grandchild by a grandparent if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
Finally, a grandparent requesting possession or access to the child must be a parent of a parent of the child and that parent:
(a) has been incarcerated 3 months preceding the filing of the petition;
(b) has been found by a court to be incompetent;
(c) is dead; or
(d) does not have actual or court-ordered possession of or access to the child.
Exception: Grandchild Has Resided with Grandparent for 6 Months
As stated above, an exception for grandparents to this “significant impairment” standard exists under the general standing statute if a grandchild has lived with their grandparent(s) for six months or more, ending not more than 90 days prior to the filing of the suit for custody. If a grandparent files an original suit within 90 days of the grandchild having resided with them for six months, the grandparent may not be required to meet the “significant impairment” standard. See Tex. Fam. Code 102.003 (9). However, this suit has to be filed by the grandparent at least 90 days from the time the six months ended.
Burden to Meet Standard is on Grandparent
Each situation is different and must be carefully evaluated. However, under the right circumstances Grandparents may petition the Court for managing conservatorship, possessory conservatorship, or visitation of their grandchild. Each case must be determined on a case by case basis as each situation is completely different from the next and requires skilled analysis and experienced counsel. The burden is on the grandparent to meet the evidentiary requirement for standing.
Contact our Grandparents’ Rights Attorneys Today
If you are a grandparent who believes that your grandchild’s physical health or emotional well being are at risk given the child’s present circumstances, you may have options. Call the Grandparent’s Rights Attorneys at the Evans Family Law Group. We have experience representing grandparents in these situations and can skillfully help you analyze your options. Mr. Evans has represented many grandparents, even winning at jury trial managing conservatorship of a grandchild in October 2011 herein Travis County. To discuss your case, call us at (512) 628-2550 or email Mr. Evans directly at service@evansflg.com.