Colby G. Berry

The relationship between a grandparent and a grandchild often plays an important role in both the grandparent and the grandchild’s life. In unfortunate situations involving either a death or divorce of a child’s parent, the relationship between a grandparent and a grandchild may become extremely limited or even severed, with little regard for the actual desires either. In these types of situations, what legal remedy do grandparents have to continue to play a role in their grandchild’s life?

Prior to discussing the rights of a grandparent to have visitation or custody of a grandchild, it is important to note that a grandparent’s rights, with regards to a grandchild, are always going to be secondary to that of the child’s parents. However, in some situations, the best interests of the child will determine if a grandparent may receive visitation or custody of their grandchild. With this in mind, the rights of a grandparent are discussed below.

Grandparent Standing

Before discussing exactly what grandparent rights are, it must be determined in which instances a grandparent has standing to bring a claim before a court to determine any potential rights to possession, access, or custody.

Filing original petition

There are a few instances in which the grandparent may bring a suit to determine their rights. The ability to bring a suit is available to a grandparent if the parents of the child are deceased, or if the grandparent has had actual control or possession of the grandchild for at least six months prior to the filing of the suit.

A grandparent may also bring a suit in order to be named the managing or primary conservator of a grandchild if the child’s current circumstances significantly impair the child’s physical health or emotional development, or if the child’s parents or custodian of the child either filed a petition with a court, or have consented to the suit.

Intervening

In situations where a suit has been filed to determine the appointment of managing conservators for a child, if it is determined by the court that both a grandparent has had substantial past contact with the grandchild and that naming the child’s parent will significantly impair the child’s physical health or well-being, the court may allow the grandparent to intervene in a pending suit.

Grandparent Visitation

Assuming that a grandparent has standing to bring a suit to assert their rights to their grandchild, what rights do they have to some form of visitation with their grandchild?

In Texas, courts will only grant a grandparent the right to receive visitation in a few specific circumstances. In addition to visitation or possession being in the best interests of the grandchild, the court requires that:

  • At least one parent of the child has not had their parental rights terminated
  • The grandparent must prove that the denial of a grandparent’s access to their grandchild would significantly harm the physical health or emotional well-being of the child and
  • The grandparent is a parent of grandchild at issue and that the parent of the child has either
    • Been incarcerated during a three-month period leading up to the filing of the suit
    • Is deceased
    • Has been found to be incompetent or
    • Does not have actual or court-ordered possession or access to the child.

Additional Limitations

In addition to the previously mentioned difficulties a grandparent faces when attempting to assert their rights over their grandchild, there are a few other limitations that exist. These are situations where a grandparent may not request visitation or access to a grandchild.

By Texas statute, a grandparent may not request to have access or possession of a child if each of the child’s parents have either:

  • Died
  • Had their parental rights terminated by a court order
  • Voluntarily relinquished their rights to their child.

Concluding Thoughts

Ultimately, the actual rights that a grandparent has with regards to their grandchildren are very limited. The Texas legislature has made it clear that any rights that grandparents may have will almost always be secondary to those rights of a parent. While the rights of a grandparent to a grandchild may be limited, there are situations where the best interests of the grandchild along with some additional factors may enable a grandparent to have custody or access to their grandchild.

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