In many of our cases involving family law, divorce, and custody of children, the grandparents are the people that step up and desire to do what is best for a child.  However, in a lot of cases that come into our office at Barbosa Family Law,  the grandparents are not aware or do not understand that they do not have the same standing as would a biological parent of a child.

Can a Texas Court appoint a grandparent as the sole managing conservator of a child?

The answer is generally “no”.   However, if both of the parents of a child are deceased, the court may consider appointment of a parent, sister, or brother of the deceased parent as a managing conservator of a child, but that consideration does not alter or diminish the power of the Court to appoint a person that will serve the best interest of a child.

A biological or adoptive grandparent may request possession of or access to a grandchild by filing an original suit with the court or by filing a suit for modification as provided by the Texas Family Code in chapter 156.

Grandparent holding child near window

Can I request visitation even if I can not ask for custody of my grandchild?

The answer is “yes”.  A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief of gaining possessory rights or visitation to a grandchild, without regard to whether the appointment of a managing conservator is an issue in the suit filed by the grandparents.

What do I have to do as a grandparent to file?   In any suit by a grandparent requesting visitation rights to a grandchild,  the person filing the action must execute and attach an affidavit on knowledge or belief that contains, along with supporting facts of the case, the allegations that denial of possession of or access to the grandchild by the grandparent filing the action would significantly impair the child’s physical health or emotional well being.  The court will deny relief to the grandparent and dismiss the suit unless the court determines that the facts stated by the grandparent stated in the affidavit, if true, would be sufficient to support the relief authorized by the Texas Family Code in section 154.433.

So how can I overcome the obstacles and get possession or of or access to my grandchild?   The court will order reasonable possession of or access to a grandchild by a grandparent if:

  1. at the time the relief is requested  by the grandparent, at least one of the biological or adoptive parents of the child has not had that parent’s parental rights terminated by the court,
  2. the grandparent requesting the possession of or access to the grandchild 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,
  3. the grandparent requesting the possession of or access of the grandchild is a parent of the parent of the child and that parent of the child has been incarcerated in jail or prison during the three month period preceding the filing of the petition, has been found by a court to be incompetent, is dead, or does not have actual or court-ordered possession of or access to the child.

Can I file as a grandparent if the parents are divorced?

If at the time of filing by a grandparent, an order granting possession of or access to a child by a grandparent that is rendered over a parent’s objections must state that at the time the relief was requested, at least one biological or adoptive parent of the child had not had that parent’s parental rights terminated.   Secondly, the grandparent requesting the possession of or access to the child has overcome the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that the denial of possession of or access to the child would significantly impair the child physical health and emotional well being.

Getting grandparent possession of or access to a grandchild is not the easiest action to pursue by a family law attorney.   At the Barbosa Law Firm,  we will evaluate each case based on the facts and provide the client with the best course of action without the case costing the grandparent a small fortune fighting one or both of the parents of the child.