Parents have important rights regarding conservatorship and possession of their child. There is a strong belief in Texas that parents are the best persons to make decisions regarding their children. Texas family law provides severe limitations to persons other than parents with regard to conservatorship and possession of children. This principle also applies to grandparents.
Unfortunately, grandparents can be caught in the crossfire of animosity between the mother and father of a child, or grandparents may have difficult relations with their own children. In either of these situations, a parent may limit a grandparent’s possession or even deny a grandparent possession altogether.
Texas law recognizes the importance of the bond between grandchildren and their grandparents and provides special rules for suits for possession of or access to a child by a grandparent, which do not apply to other non-parent individuals involved in the child’s life. Under the Texas Family Code, a biological or adoptive grandparent may request possession of or access to a child by filing an original suit or by requesting that an existing order be modified to provide them with access or possession to their grandchild.
The trial court may then order reasonable possession and or access to the grandchild by the grandparent if the following requirements are met: (1) at least one biological or adoptive parent of the child is alive; (2) the grandparent requesting possession or access of the child overcomes the presumption that a parent acts in the best interest of the child by establishing that denial of possession or access to the child by the grandparent would significantly impair the child’s physical health and emotional development; and (3) the grandparent requesting possession or access of the child is a parent of the child has been incarcerated in jail for three months prior to filing the suit, has been found by a court to be incompetent, is dead, or does not have actual or court-ordered access to the child.
In addition to access and/or possession, a grandparent may file a suit seeking to be appointed managing conservator of their grandchild if the child’s present circumstances would significantly impair the child’s physical health or emotional development, or both of the child’s parents, the surviving parent, or the managing conservator consent to the suit.
Also of note, the Texas Family Code does not allow grandparents to file original suits for possessory conservatorship unless the child has resided with a grandparent alone for more than six months before a suit is filed. The law does also, however, grant grandparents leave to intervene in a pending suit (such as a divorce action) if there is satisfactory proof that the appointment of a parent as sole managing conservator or both parents as joint managing conservators of the child would significantly impair the child’s physical health or emotional development.