Families Come in All Shapes and Sizes
At Potter County law firm Woodburn and Watkins, we recognize the importance of grandparents’ rights when it comes to visitation with or custody of their grandchildren. We also understand that every family is unique: we live in a society that has more and more fractured families, with step-parents, grandparents, uncles, aunts, and even siblings providing significant care for children. These non-parents are playing a significant role in raising children – both in or out of the traditional family model. Texas presumes that a child’s best interest is served when a parent is awarded primary custody of a child, and that a fit parent is entitled to decide who might spend time with their child. However, this does not mean that grandparents or other non-parents have no rights!
Legal Considerations Regarding Grandparents’ Rights and Other Non-Parents
Grandparents and other non-parents have the right to pursue legal remedies – including custody of children – but limitations exist for those persons asserting rights against a parent who the judge considers to have acted appropriately. The right to initiate an action for custody of a child by a grandparent differs in significant ways from the right to join in a suit that is already ongoing between parents or the state. The pursuit of custody or possession time in this area calls for extremely competent, engaged, and knowledgeable counsel. The family law attorneys at Woodburn and Watkins believe the expertise of a Texas Board Certified Family Lawyer is necessary to safely navigate a non-parent’s legal rights to custody or visitation.
Filing an Original Suit in Texas
As a general rule, a grandparent or other person may not file an initial suit to gain visitation. However, a judge may allow such a person to file an original suit for custody. In order to proceed, the non-parent must establish certain facts before the judge will permit the case to move forward. To initiate an original suit involving conservatorship, a non-parent must establish:
- that the parent relinquished actual care, custody, and control of the child to the non-parent for at least six months;
- that the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development;
- that both parents have consented to the non-parent’s lawsuit.
The court will usually only allow non-parents to start a suit for custody against a parent if they can prove one of these three conditions (above) exist; failing that, a non-parent may not initiate a lawsuit for custody. Evaluating the strength of a case, knowing the nuances of the judge who will be deciding the case, and developing and presenting the evidence seeking to justify eliminating or infringing on a parent’s right requires specialized legal skills that can only be acquired by years of practice in the field. The lawyers at Woodburn and Watkins have the required experience and skills to make a persuasive argument for visitation or custody on behalf of non-parents.
Joining (“Intervening in”) an Existing Suit
A non-parent may also qualify to join a custody case that is already in progress – either because the child’s parents or some other entity such as the Department of Family and Protective Services (aka “Child Welfare”) has initiated a lawsuit. If the judge allows the non-parent to join in the suit, he/she may be allowed to seek visitation or custody. In order for a non-parent to file for custody (called “conservatorship”) or visitation (called “access and possession”) in a pending case, the non-parent must show that they are related within the third degree of the child or that they have had substantial past contact with the child. The non-parent must also show that the appointment of either parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development: i.e., that the parents are unfit to raise their child.
If a grandparent cannot meet the threshold findings necessary to ask to be named a conservator, they may still file a suit to solely ask for possession and/or access to a child. For a grandparent to ask for possession or access of the child, the grandparent must prove that:
- at least one of the parent’s parental rights have not been terminated;
- the denial of possession to the grandparent would significantly impair the child’s physical health or emotional development; and
- the grandparent’s child who is the parent is unavailable because that parent is incarcerated, incompetent, dead or does not have any court-ordered possession or access to the child.
A grandparent may have the right to request a jury trial regarding to make determinations about their involvement with the child. A non-parent may request a jury rather than a judge to make the determination as to whether he or she is awarded custody of a child or to make a determination of whether he or she is awarded possession and access to the child.
Let Us Help You Understand Grandparents’ Rights in a Texas Divorce
Unfortunately, many people do not understand grandparents’ rights in Texas. In addition to this, grandparents and other non-parents may have more difficulty than parents in maintaining a relationship with children once the non-parent has been separated from a child. The family lawyers at Woodburn and Watkins, located in Potter County, can help give you the legal advice you need to help preserve your precious relationship with your grandchildren.
Before entering into what may be an extended and difficult case, you need professional advice regarding your grandparents’ rights or your rights as a non-parent. The experienced attorneys at Woodburn and Watkins will give you knowledgeable advice to help you make your decision. If a grandparent or non-parent decides to seek redress through the court system, we will vigorously fight to continue their relationship with a child when it is in the child’s best interest. If you are located in Potter County, Texas, and need help understanding or defending your grandparents’ rights, contact Woodburn and Watkins today.