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Grandparent Child Custody Attorney San Antonio

San Antonio Grandparent Child Custody Attorney

A Delicate Subject

The subject of grandparents’ rights is a delicate one.  The vast majority of grandparents play meaningful and loving roles in the lives of their grandchildren.  Yet, grandparents’ rights in legal disputes have serious limitations.

The U.S. Supreme Court Sets The Stage

The landscape changed in 2000 when the U.S. Supreme Court decided the case entitled Troxel v. GranvilleTroxel involved a dispute over visitation with the grandchildren after the grandparents’ son had died.  The children’s mother, Ms. Granville, limited the grandparents’ visitation.  The grandparents wanted more.  The grandparents sued and—over the mother’s objection—obtained greater visitation rights as permitted by a Washington State law. 

In due course, the U.S. Supreme Court struck down the Washington law as being unconstitutional.  The Supreme Court stated that a parent’s ability to manage the care, custody and control of their children was perhaps the oldest fundamental liberty interest recognized by the Court.  The Supreme Court identified two flaws with the Washington law and the grandparents’ case.  First, the Washington law did not presume that a parent's decision was made with the best interest of the children in mind.  Second, the grandparents failed to offer any proof that might overcome such a presumption.  In short, there was no evidence that the mother was an unfit parent or that the mother’s decision caused significant harm to the children.  In the aftermath of the Troxel decision, States—including Texas—changed their laws to conform to the Supreme Court’s guidance.  You will see those changes reflected in the paragraphs below. 

Not Anyone Can File A Lawsuit

"Standing" pertains to a person’s capacity to bring a lawsuit in court.  The law doesn’t permit a person to bring a lawsuit on any issue that strikes their fancy.  A person must demonstrate a legally recognized connection with the matter in controversy.  

The Texas Family Code defines the circumstances under which grandparents can either originate or intervene in a lawsuit.  Intervention is when a person files a petition with the court to be added as a party in someone else’s lawsuit.  Only parties can introduce evidence, offer argument, make motions, and otherwise seek relief from a court.  A qualified attorney will be able to advise you of the existence of or barriers to standing after discussing the specific facts of your situation.  Otherwise, various aspects of standing will appear in the remaining subjects.

Bringing Suit for Custody

Custody is called conservatorship in the Texas Family Code.  We’ll mainly use the term custody since conservatorship sounds awkward to most people.  There are several situations that permit a grandparent to bring suit for custody or intervene in a suit for custody filed by someone else. A brief discussion of each situation follows below. 

  • First, a grandparent can bring an original suit for custody if they have had possession of a grandchild for at least six months.  The period of possession cannot have ended more than 90 days prior to the suit.  
  • Second, a grandparent can bring an original suit for custody if they prove one of two circumstances as follows:
    • The grandchild’s present circumstances would significantly impair the child’s physical health or emotional development; or,
    • Both parents, a sole surviving parent, or another person with legal custody consented to the suit. 
  • Third, a court can authorize the grandparents to bring suit on behalf of the child if, for example, both parents have died. 
  • Fourth, a grandparent can intervene in someone else’s lawsuit for custody if they prove to the court the following:
    • Award of primary custody to one or both parents would significantly impair the child’s physical health or emotional development.
    • In some cases the grandparents must also prove that they have had substantial past contact with the child.

What Constitutes "Substantial Past Contact"

“Substantial past contact” is not defined in the Family Code.  What constitutes substantial past contact is determined by the courts on a case by case basis.  The courts generally focus on the amount of contact and not any difficulties or obstacles that may have limited contact.  In one case, for example, the court determined that talking on the telephone and sending cards and holiday gifts did not meet the standard—despite the grandparents wanting and attempting more.  A qualified attorney will be able to provide sound advice only after discussing the specific facts of your situation.

Bringing Suit for Visitation

Strictly speaking, possession equates to visitation.  Access equates to other forms of contact such as telephone calls, texts, emails, etc.  For simplicity, we’ll use the term “visitation” to mean both possession and access.

A grandparent can petition a court for visitation rights without also seeking custody.  Before proceeding, it’s critical that grandparents recall the standard set by the U.S. Supreme Court in Troxel.  It is legally presumed that parents' decisions are in the best interest of their children.  Grandparents seeking visitation rights through the courts must overcome this presumption.

In a petition, the grandparents must allege sufficient facts for a court to conclude that denial of visitation would significantly impair the child’s physical health or emotional development.  Failure to allege sufficient facts will cause the court to dismiss the grandparents’ suit.

If the grandparents’ suit is permitted to proceed, then a court may—but is not required to—order reasonable visitation with a grandchild if the grandparents prove the following:

  • At least one parent (biological or adoptive) has not had their parental rights terminated;
  • The grandparents overcome the legal presumption established by Troxel by proving that denial of visitation would significantly impair the child’s health or emotional well-being; and
  • The grandparents requesting visitation are the parent-of-a-parent and:
    • That parent has been incarcerated for at least three months prior to the petition;
    • That parent has been determined by a court to be incompetent;
    • That parent is dead; or,
    • That parent does not have court-ordered visitation with the child (“possession or access”).

Post-Adoption Concerns

The law does not permit a grandparent (biological or adoptive) to request visitation with a grandchild if each of the biological parents has:

  • Died; and,
  • The grandchild has been adopted—or is the subject of a suit for adoption—by a person other than the child’s stepparent.

So we don’t confuse the issues, it’s important to emphasize that—if the parents have died—grandparents can be awarded custody (“managing conservatorship”).  Grandparents also can seek to adopt the grandchild.  The grandparents cannot, however, seek visitation rights if someone other than a surviving stepparent has petitioned to adopt, or has adopted, the grandchild. 

Post-Termination or Relinquishment of Parental Rights Concerns

The law does not permit a grandparent (biological or adoptive) to request visitation with a grandchild if each of the biological parents has:

  • Had their parental rights terminated; or,
  • Executed an affidavit or relinquishment of parental rights in favor of an authorized agency, licensed child-placement agency, or person other than the child’s stepparent.

In closing, it’s easy to see the legal obstacles that loving and caring grandparents face are many.  Whether a grandparent has standing to bring suit or intervene in a suit for custody or visitation—and the likelihood of success—depends on the specific facts of the case.  A qualified attorney will be able to give sound counsel only after discussing the specific facts and your objectives.  The Cramp Law Firm stands ready to help if you need us.

 



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Alamo Towers West, 901 NE Loop 410, Suite 800, San Antonio, TX 78209
| Phone: 210-762-4502

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