Can Grandparents Get Custody of Grandchildren in Texas?

Austin Child Custody Attorney Jillian French

Video transcript:

Jillian French:

Carting the children around to and from school, to extracurriculars, really taking on that parenting role is where I’ve seen it be successful.

Rob Rosenthal:

So what custody rights do grandparents have in the state of Texas? Well, that's what we're going to find out today because that's what we're going to Ask the Lawyer. Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com, and my guest is Attorney Jillian French with the Vaught Law Firm in Austin, Texas. I want to remind you, if you'd like to ask questions about your specific situation, it's easy; just go to askthelawyers.com, click the button to the top of the screen that says “Ask a Lawyer”, and you can ask away right there.

Jillian, it’s good to see you again, as always. Thank you for helping us out.

Jillian French:

Thank you for having me.

Rob Rosnethal:

So just to start at the beginning, can grandparents sue for custody in the state of Texas?

Jillian French:

It is very difficult. Technically grandparents do have the ability to ask for custody and/or visitation of their grandchildren, as well as other relatives that are within the third-degree of consanguinity, which would include aunts and uncles, siblings, people like that.

Rob Rosenthal:

So what are some of the circumstances where a grandparent might be able to ask for custody? Do they already have to live with the child?

Jillian French:

So to have a case for conservatorship, which is the right to have information, access to information, and perhaps even some decision-making authority, the grandparent or relative would need to have substantial past conduct with the child. They don't have to live together, but they need to have substantial past conduct, and they have to be able to show that appointing one or both of the parents as either a joint-managing or sole-managing conservator would significantly impair the child's physical well-being or emotional development. So it is a very fact-intensive inquiry, and it's something that has to really be evaluated on a case-by case basis.

Rob Rosenthal:

Yeah, that sounds very complicated. So what if we are just talking about visitation and not actual custody? Can grandparents sue if they're not even allowed to visit the grandchild?

Jillian French:

When it comes to visitation, there's actually a two-prong analysis here. The first one is, do they even have the ability to ask for visitation? And that's referred to as standing. Again, in this situation, we're looking at what has the past contact been like, and also is there significant impairment in not allowing the children to see or have visitation with these grandparents? The other thing is, once you get past that initial standing requirement or analysis, then you can move on to what's called the merits of the case. So in order to prove that you need visitation in a merit situation, the grandparent also has to show that their child, so the parent of the grandchild, is either incarcerated for three months or more, has passed away, or is not a conservator under a current court order. So there's some additional requirements once you get over the hurdle of, can I even file?

Rob Rosenthal:

Sounds pretty complicated, and not the kind of thing you'd want to try to navigate on your own I'm guessing.

Jillian French:

No, certainly not. It is very, very difficult to overcome that presumption, a parent being allowed to be a joint-management conservator. It's also difficult to show that there's going to be some sort of significant impairment to the children if they don't get to see the grandparents. Because the court will look at the parents and presume that they are fit parents, capable of making appropriate decisions for their children, including when and how often their children should see the grandparents. Obviously, that's not always the case, but you would definitely want to consult with an attorney.

Rob Rosenthal:

This whole situation with grandparents suing for custody and/or visitation, is this something that happens very often? Have you seen it very often in your experience?

Jillian French:

I have seen it happen. I have been involved in suits where it did happen. It is not very common, just because it is something that requires so much evidence, and it is a significant burden to prove. Situations where I've seen it be successful are where the grandchildren were living with the grandparents for a period of time, or they were providing all of the support for the children even if they weren't living there. They were doing all of the carting the children around to and from school, to extracurriculars, really taking on that parenting role is where I've seen it be successful.

Rob Rosenthal:

So if you're a grandparent considering this, talk to a family law attorney like yourself to walk through this process.

Jillian French:

Absolutely. And it is a difficult decision to make, particularly if your child is someone that you're going to have to be an adversary to in the court process in order to get access to or custody of the grandchildren.

Rob Rosenthal:

Lots of great information, Jillian . Thank you so much for making some time and answering our questions.

Jillian French:

No problem.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Austin attorney Jillian French with the Vaught Law Firm. Remember, if you'd like to ask a question about your specific situation, go to askthelawyers.com, click the button at the top of the page that says “Ask a Lawyer”, and you can ask away right there. Thanks for watching. I'm Rob Rosenthal with
AskTheLawyers™.

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