Texas grandparents’ rights: access to and possession of grandchildren

When children are born, everyone hopes for the best as they grow up. But sometimes difficult circumstances develop in their immediate family that causes their grandparents concern for the kids' well-being.

Or for a variety of reasons, a parent may cut off contact between a child and his or her grandparent. When those reasons are not valid, an appropriate, loving grandparent-grandchild relationship can suffer.

In these types of situations, grandparents have certain legal rights, which vary -sometimes greatly - from state to state, since family relationships are mostly controlled by state laws. Texas law has several provisions that impact grandparents' rights vis-à-vis access to their grandchildren.

Some Texas laws pertaining to child contact or custody specifically apply to grandparents, while others apply generally to adults other than the children's parents and do not exclude grandparents from consideration.

In general, Texas law strongly supports healthy families of origin and the rights of biological parents. When parents are raising their kids well and nothing significantly wrong is going on in the family that could hurt the children, the law does not generally allow for legal intervention to interrupt the parent-child relationship.

However, when something impacts a nuclear family in a negative way, a grandparent may get more rights when it comes to his or her relationship with a grandchild in that weakened family unit. Such situations can include parental death, legal termination of parental rights, parental incarceration, domestic violence, parental incompetence, parental substance abuse and so on.

The other important aspect of Texas laws impacting grandparents' rights in these types of situations is that a grandparent is not presumed to have an automatic right to access to a grandchild - other factors must still be present for a court to order that those rights be enforced.

And normally in Texas, these provisions apply to biological or adoptive grandparents, but not to step grandparents.

Here are some potential circumstances involving grandparents' rights in Texas:

  • Stepparent adoption: Adoption of a grandchild by a stepparent does not terminate the rights of his or her grandparents to reasonable contact. This often comes up when the biological grandparents on the other side of the family still want the kids in their lives. Still, the grandparent must show that cutting off contact would significantly hurt the child physically or emotionally; the right is not automatic. Grandparents lose access rights, however, when a child is adopted by anyone other than a stepparent and both parents are dead, have had their parental rights terminated or have given up those rights.
  • Parent not available to child: When a parent is not there for his or her child because of imprisonment, incompetence, death, or loss of possession or rights, but the remaining parent is legally able to care for the child, the grandparent who is the parent of the unavailable parent can request access. However, again, the grandparent still must show that no access would significantly harm the child.
  • Authorization agreement: A parent or parents may enter into an agreement voluntarily with a grandparent to transfer most parental responsibilities and rights to the grandparent.
  • Grandparent adoption: When the parents' rights to their child are terminated, a grandparent may petition to adopt the grandchild, but the grandparent must meet certain time deadlines and other criteria relating to past contact or adoption of a sibling.
  • Termination of parental rights: Termination of parental rights does not terminate the rights of those parents' parents.
  • Appointment as managing conservator: In Texas, a managing conservator basically has custody of a child. When parents die or have their parental rights terminated, grandparents may be considered for appointment as managing conservators of their grandchildren, but the court has ultimate discretion over whom to appoint. In a recent Texas case, for example, a grandmother was not appointed where the court found it was not in the grandchildren's best interest because she had serious medical problems, no stable home, an abusive husband and had violated terms of her previous temporary custody appointment.

To assert grandparents' rights in Texas, often a lawsuit must be filed, so it is important to talk to an experienced family law attorney about what rights are available and how they would be enforced.