Grandparent's Rights – Grandparents have no inherent rights under the Texas Family Code. However, a grandparent or any other relative within the third degree on consanguinity may petition the court to become the managing conservator of a child. The petition will be granted if there is sufficient proof that granting the petition would be in the child's best interests and both parents, the surviving parent, the managing conservator, or the custodian consented to the suit.
A grandparent may petition the court to become managing conservator by filing an original suit or by filing a petition for intervention. An intervention means that a suit has already been filed and the grandparents are simply seeking to become a part of that suit. Although the term managing conservator usually refers to custody, in the cases involving grandparent's rights, it may simply refer to the right to make decisions regarding the upbringing of the child which may include, but are not limited to, education, religion, and medical treatment.
A grandparent seeking to become a child's managing conservator must show the court:
- That he had actual possession and care of the child for at least six months prior to filing the petition as long as that care and control did not end more than 90 days prior to filing the petition.
A grandparent may seek possessory conservatorship of a child by filing an original suit or a petition for intervention. This suit is very similar to a suit for visitation filed by a non-custodial parent. However, in some instance a suit for possessory conservatorship of a child may also involve giving the grandparent certain decision making rights regarding the upbringing of the child.
If the grandparent had had actual control and possession of the child for a minimum period of six months that did not end more than 90 days before the petition was filed or the grandchild and the grandchild's managing conservator, or parent have resided with the grandparent for at least six months not ending more than 90 days before the filing of the petition, a court will entertain an original suit or an intervention for possessory conservatorship. However, the court will entertain an intervention for possessory conservatorship only if the grandparent has had substantial contact with the child and can successfully demonstrate to the court that granting sole managing conservatorship to one parent or joint managing conservatorship to both parents would significantly impair the child's physical health or emotional development.
A grandparent may also seek access to (visitation) with a child by filing an original suit or a petition to intervene. A grandparent's case will be considered by the court if:
- at the time the suit is filed, at least one biological or adoptive parent has not had his or her parental rights terminated;
- he can prove that a denial of access to the grandchild would significantly impair the child's physical health or emotional well-being; and
- he is the parent of a parent of the child with which whom he seeks visitation.
In addition to meeting the three criteria set forth above, the grandparent must also demonstrate at least one of the following before a court will grant him visitation:
- the parent has been incarcerated during the three month period immediately prior to the date the petition was filed;
- the parent has been adjudicated to be incompetent by a court;
- the parent is dead; or
- the parent does not have actual or court ordered possession of or access to the child.
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