It is a longstanding principle under both federal and Texas state law that parents have a fundamental right to make decisions about the care and custody of their children. Part of this includes the right to make decisions about which family members get to spend time with the child.
As such, grandparents have no automatic rights to custody of their grandchildren, or even to visit with them occasionally. However, in situations where a grandchild is being raised in an unhealthy environment — perhaps because of domestic abuse or a parent’s chemical dependency or mental health problems — many grandparentswant to step in to become their grandchild’s primary caregiver.
Child custody lawsuits
There are a number of ways to accomplish this goal. The most straightforward is to have the parents execute a power of attorney giving the grandparent the ability to take physical custody of the child and make important decisions about his or her upbringing. However, powers of attorney are generally temporary and can be rescinded by the parents at any time.
If the parents do not consent, or if the grandparent wishes to pursue permanent custody, the grandparent will have to go to court. The Texas Family Code allows grandparents to file an original lawsuit seeking child custody under two circumstances. The first is when the grand parent can show that the child’s present living conditions would cause damage to his or her physical or emotional health. The second is when the child’s parents or legal guardian agree the child should live with the grandparent. In order to have standing to bring a lawsuit, the grandparent must have had significant past contact with the child.
Grandparents also have the ability to intervene in a child custody case initiated by someone else.
Determining child custody
In Texas child custody cases, judges will make their decisions based on what is in the best interest of the child at issue. While every case is unique, most judges consider the following “best interest” factors:
- The child’s desires, if the child sufficiently mature to voice them
- The child’s physical and emotional needs
- The physical and emotional dangers the child faces
- The parenting abilities of each person seeking custody
- Programs available to help these individuals promote the child’s best interests
- These individuals’ plans for the child
- These individuals’ ability to provide a stable home for the child
- Any parental acts or omissions indicating a problem with the existing parent-child relationship
- Any excuses for these acts or ommissions
If you are considering seeking custody of your grandchild, it is important to enlist the help of an experienced Texas family law attorney. The attorney will be able to work with you to review all of the factors present in your case to help you maximize your chance of success.