As a divorce attorney in Dallas County, Texas we are confronted with situations where either the paternal or maternal grandparents seek to intervene in a divorce case involving children.  Even though as a divorce attorney  we represent one of the parents,  issues arise in many cases where the parents are not pursuing the best interest of the children.  In such cases, the grandparents are in a position to attempt to be part of the children’s  life to assure that the parents get the help they need before having full responsibility of the children.

How do I know as a grandparent if I can get involved in a divorce case?

The Texas Family Code in section 102.004 provides guidance for a grandparent contemplating getting involved in a divorce involving grandchildren.

In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or

(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

(b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person, subject to the requirements of Subsection (b–1) if applicable, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court 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.

(b–1) A foster parent may only be granted leave to intervene under Subsection (b) if the foster parent would have standing to file an original suit as provided by Section 102.003(a)(12).

(c) Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 of the Texas Family Code.

Can I get managing conservatorship as a grandparent?

Working in a divorce practice,  we do not represent a lot of grand parents seeking possession or custody of grandchildren.   However,  the current provisions of the Texas Family Code do not allow a grandparent to seek managing conservatorship of a grandchild in most circumstances.

For many years grandparents have had standing to seek managing conservatorship when a child’s present circumstances would significantly impair the child’s physical well-being or emotional development. In 2007, the legislature amended the Family Code to grant any relative within the third degree of consanguinity of the child standing to seek managing conservatorship. In other words, greatgrandparents, siblings, and blood aunts and uncles now have standing to seek managing conservatorship under this section.

The general rule in litigation is that standing cannot be conferred by consent. Subsection 102.004(a)(2) is an exception to this general rule. In re M.K.S.–V., 301 S.W.3d 460, 464 (Tex. App.—Dallas 2009, pet. denied).

What do the cases in Texas say about grandparent rights?

In re E.C., 05-17-00723-CV, 2017 WL 6505867, at *4 (Tex. App.—Dallas Dec. 20, 2017, no pet.). Court of appeals affirmed the trial court’s dismissal of a plea in intervention because foster parents failed to allege and establish standing under subsection 102.004(b). The court of appeals determined that the legislature’s recent amendment to subsection 102.004(b) indicates that it applies to persons who seek to intervene in a pending suit, even if the person may have had standing to bring an original suit.

In re Derzapf, 219 S.W.3d 327 (Tex. 2007). A step-grandparent may have standing to seek sole or joint managing conservatorship under the “substantial past contact” provision of subsection 102.004(b) but does not have standing to seek grandparent access under section 153.433.

In re J.R.W., No. 05-15-1479-CV, 2017 WL 1075610 (Tex. App.— Dallas Mar. 21, 2017) (mem. op.). When paternal grandparent pled alternatively for conservatorship under section 102.004 and access under section 153.432, court held that it could consider evidence of circumstances at any time leading up to the judgment to determine if the court acted properly in allowing grandparent standing through her intervention. Paternal grandparent’s affidavit established sufficient facts to support a determination that the child would suffer substantially if the grandparent was not granted access; thus, the trial court’s final orders allowing grandparent possession of the child were not an abuse of discretion.

In re L.D.F., 445 S.W.3d 823, 828–30 (Tex. App.—El Paso 2014, no pet.). “In family law cases in which a petitioner must go beyond mere pleading allegations and provide ‘satisfactory proof’ of jurisdictional facts to establish statutory standing, the petitioner meets that burden where those predicate facts are proven by a preponderance of the evidence. . . . [W]e refute [father’s] contention that . . . appointment of a parent in a limited conservatorship capacity somehow automatically precludes appointment of a grandparent as joint managing conservator by operation of law. The language in the Family Code is clear: if sole managing conservatorship by one parent or joint managing conservatorship by both parents would result in significant impairment of a child’s physical health or emotional development, the court has wide discretion to appoint conservators in the child’s best interest. While we agree with [father] that section 102.004(b), a standing statute, does not grant the trial court power to appoint a parent and grandparent as joint managing conservators, section 153.372 specifically authorizes a nonparent to serve as a joint managing conservator with a parent. Thus, when the statutory provisions are read as a whole, it becomes clear that once a non-parent surpasses the high bar set for intervenor standing under section 102.004(b), the trial court may allow the grandparent ‘to intervene and seek both managing and possessory conservatorship.’ . . . Where a trial court appoints a parent and nonparent as joint managing conservators, it implicitly rules that parent’s sole custody would significantly impair the child’s physical health or emotional development. Here, because the trial court permitted grandparent intervention and joint custody in the case, we must assume it impliedly found that [father’s] sole managing conservatorship would significantly impair [the child’s] physical health or emotional development.” See also Mauldin v. Clements, 428 S.W.3d 247, 263 (Tex. App.—Houston [1st Dist.] 2014, no. pet.).

In re K.D.H., 426 S.W.3d 879, 881 (Tex. App.—Houston [14th Dist.] 2014, no. pet.). “Today . . . this court addresses the legal standard for establishing standing under section 102.004(a)(1). . . . We conclude that, to have standing under this statute, a grandparent or other relative within the third degree of consanguinity must present proof that, when considered in the light most favorable to the petitioner, would enable reasonable and fair-minded people to find that the order requested is necessary because the child’s circumstances on the date suit was filed would significantly impair the child’s physical heath or emotional development.” But see In re L.D.F., 445 S.W.3d 823, 828 (Tex. App.—El Paso 2014, no pet.).

In re Salverson, No. 01-12-00343-CV, 2012 WL 1454549 (Tex. App.—Houston [1st Dist.] Apr. 23, 2012, orig. proceeding) (mem. op.). The court of appeals granted mandamus relief to overturn a trial court’s determination that “foster- to-adopt-parents” did not have standing to intervene in a SAPCR brought by the TDFPS. The court of appeals concluded that “foster-to-adopt-parents” had standing as “other persons” under subsection 102.004(b).

In re Chester, 398 S.W.3d 795, 800–802 (Tex. App.—San Antonio Dec. 28, 2011, orig. proceeding). The court of appeals granted mandamus relief to overturn a trial court’s decision to strike a paternal aunt’s petition in intervention, holding that the paternal aunt had standing as a relative within the third degree of consanguinity under subsection 102.004(a)(1).

In re Lewis, 357 S.W.3d 396, 399–402 (Tex. App.—Fort Worth 2011, orig. proceeding). The court of appeals granted mandamus relief to overturn a trial court’s refusal to strike grandparents’ intervention, holding that the grandparents lacked standing under subsection 102.004(a)(2) because both parent managing conservators refused to consent to the grandparents’ intervention.

In re M.J.G., 248 S.W.3d 753, 757–59 (Tex. App.—Fort Worth 2008, no pet.). Grandparents lacked standing under subsection 102.004(a)(1) because they failed to prove that the child’s present circumstances would significantly impair the child’s physical well-being or emotional development.

Blackwell v. Humble, 241 S.W.3d 707, 722 (Tex. App.—Austin 2007, no pet.). “We agree . . . that [uncle] did not show that he had ‘substantial past contact’ with the children. [He] testified only that he had ‘seen them regularly.’ Without more, this does not show substantial past contact sufficient to warrant his intervention, especially in this case in which both parents are living and present and there is no testimony that the children are at risk living with [father]. . . . [However,] we cannot hold that the trial court abused its discretion in allowing [grandmother] to intervene. She frequently cared for the children, lived nearby, and spent a great deal of time with the family, and the trial court reasonably could have determined that she showed substantial past contact with the children.” But see In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.—Beaumont 2001, no pet.) (Grandparents, unlike “other persons,” are not required to show substantial past contact with children to intervene under subsection 102.004(b).).

In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.—Beaumont 2001, no pet.). The court of appeals held that the phrase “deemed by the court to have had substantial past contact” modifies “other person,” and not “grandparent.” As such, it would appear that the mere existence of the grandparent-grandchild relationship is sufficient to confer standing under subsection 102.004(b) to file an intervention in a pending suit, thus recognizing, if not elevating, the status of grandparents, as opposed to other persons related to or with substantial past contact with the child.

It is always advised to seek legal counsel, if you are a grandparent seeking some type of conservatorship of a grandchild.  The case is going to be governed and ruled based on the facts of the case involving the relationship between the grandparent and the child.