There are few things in life more exciting than becoming a grandparent. Part of what makes it so fun is that you get all of the joy and love…without the hard work of day-to-day parenting. Unfortunately, there are some situations where grandparents may need to take legal action in order to see or care for their grandkids.

In Texas, grandparents do not have a specific legal right to either child custody or visitation. However, there may be some circumstances where a grandparent can petition the courts for custody or visitation. If it would be in the child’s best interests, then a court may award custody and/or visitation. Our Austin family law attorneys can help you navigate the process.

At the Law Office of Jason Wright, we offer strategic, thoughtful legal representation to individuals and families navigating Texas family law matters, including divorce, child custody, and child support. If you are a grandparent who has been denied access to your grandkids, we can help. Reach out to our law firm today to schedule a consultation with an Austin grandparents’ rights lawyer.

Grandparents’ Rights in Texas

When we talk about grandparents’ rights, we are typically referring to their legal rights related to their grandchildren. In most healthy family dynamics, the issue of grandparents’ rights never arises. Unfortunately, issues related to divorce, separation, addiction, incarceration, and death can often lead grandparents to seek legal counsel. In some cases, personality clashes or hostility between family members may cause a rift that affects grandparents’ ability to see their grandkids.

Broadly speaking, grandparents do not have a right to custody of or visitation with their grandchildren. However, there are certain situations where grandparents can petition for custody and/or visitation. If granting the petition would be in the best interests of the child, a court may order that the grandparents can have custody or visitation. They may even approve a grandparent adopting their grandchild.

To petition for custody or visitation, a grandparent must have standing. This is essentially the right to pursue a legal claim. To establish standing, a grandparent must show at least one of the following:

• The child’s parents are divorced;
• The child’s parent has been incarcerated, declared incompetent by a court, or has died;
• The child is determined to have been abused or neglected by their parents;
• The parent-child relationship has been terminated by a court order; or
• The grandparent has had actual care, control, and possession of the child for at least 6 months.

Importantly, grandparents do not have standing in cases where the parents are together and actively and responsibly caring for their children. If the parents are denying grandparents the ability to see their grandkids for some reason, there has to be something more for the grandparents to have standing. If you simply aren’t getting along with the parents and they are good parents to your grandkids, you won’t be able to petition for custody or visitation.

If a grandparent (or grandparents) can establish standing, then they can file a petition for custody or visitation. A court will then make a decision on the matter based on the best interests of the child. If you are unsure of whether or not you have standing or simply want more information about your rights, our Austin family lawyers can help you understand your options.

Grandparents’ Right to Custody or Visitation in Texas 

Texas doesn’t use the word custody when referring to rights to child.  Conservatorship refers to the legal responsibility of raising a child, including providing for their basic needs and making decisions about important issues like medical care, education, and schooling. 

Possession is the term that Texas uses for what many people refer to as “visitation.”  The right to possession or access rights allow grandparents to have regular contact with their grandchildren. A grandparent may seek some of these rights if the parents are denying them access to their grandchildren. However, as described above, grandparents will only have standing to make this request in limited circumstances.

In Texas, courts will use the same legal standard to determine both the custody and visitation rights of grandparents. As with other family law matters, the primary concern is the best interests of the children.

Under Texas law, a court may grant visitation or custody if the grandparents can prove that a denial of possession of (custody) or access to (visitation) the child would significantly impair the child’s physical health or emotional well-being. In making this decision, a court may consider:

• The relationship between the grandparent and the child.
• The grandparents’ ability to provide and care for the child.
• The willingness of the grandparent to support the relationship between the child and their parents.
• The emotional and physical needs of the child.
• The preference of the child, if they are old enough to express a reasonable preference.
• Any history of abuse, neglect, or substance abuse by the grandparent.
• The stability of the grandparent’s home environment.

Consider a situation where a grandparent seeks custody of their grandkids because their adult child (the parent of the grandkids) is dealing with substance abuse disorder and has not been around their kids for more than a year. The other parent also struggles with addiction issues, but has custody of the kids. Here, a grandparent may be able to introduce evidence to show that denying them custody of their grandkids would significantly impair their well-being.

This brings up two important points. First, grandparents have to prove that custody or visitation is in the best interests of the child by a preponderance of the evidence (i.e., more likely than not). Second, the grandparent(s) seeking custody must be the parent(s) of the parent who is incarcerated, incompetent, deceased, or otherwise does not have custody of their child. In other words, if your own adult child is a good parent and simply does not want you to see their kids for whatever reason, you probably will not be successful in a custody or visitation petition.

These rules seek to balance the desire of grandparents to see their grandkids with the inherent rights that parents have to care for and make decisions about their kids. The overarching consideration is always the best interests of the child. If the parents are generally taking good care of the kids but simply won’t let the grandparents have access to them for whatever reason, then a court will probably deny a petition for custody or visitation.

Adoption and Grandparents’ Rights

In Texas, when a child is formally adopted, their biological parents’ rights are terminated. As a result, the grandparents will also lose their rights when it comes to their grandkids. Because they will no longer have a legal relationship to their grandkids, they will not have standing to petition for visitation or custody.

This includes situations where a stepparent adopts a child after a parent terminates their parental rights. The biological grandparents of the non-terminating parent may still be able to seek custody and/or visitation if they otherwise have standing. If a child is adopted by a different family member, such as an aunt, then the grandparents would still have a legal relationship with their grandchild.

Grandparents can also adopt their grandchildren. This often arises in cases where the kids’ biological parents are unwilling or unable to care for them. Typically, to adopt your grandchildren, the following requirements must be met:

• You must have a home study by a licensed child-placing agency or social worker and complete the necessary background checks and investigations.
• You must be eligible under Texas law to adopt a child.
• If your grandchild is 12 or older, their consent to the adoption may be required.
• The biological parents’ rights must have been terminated, voluntarily or involuntarily.

If you meet these criteria, then you can file a petition for adoption with the help of an Austin adoption lawyer. A court will schedule a hearing where it will make sure that you meet the requirements and that the adoption is in the best interests of the child. The judge will then finalize the adoption, making you the legal parents of your grandchild(ren).

Because adoption requires the termination of parental rights, some grandparents may not want to take this step. For example, if your child is struggling with addiction and you are raising your grandchildren, you might not want to go down that road. Our Austin family law attorneys can talk you through different legal options in this scenario, such as seeking custody without going through the formal adoption process.

Concerned about Seeing Your Grandkids? We Can Help.

As a grandparent, you only want what is best for your grandkids. In some cases, this might mean that you seek custody of them or visitation with them. While grandparents do not have an unqualified right to custody or visitation, there are situations where you can file a petition, and a court may decide that it is in the best interests of the children.

At the Law Office of Jason Wright, we know how complicated and difficult these types of family law cases can be. We offer compassionate legal representation for grandparents who want to explore seeking custody or visitation. To learn more or to schedule a consultation with an Austin grandparents’ rights lawyer, call our law firm at 512-706-9662 or fill out our online contact form.