Grandparents may have the right to file a lawsuit requesting visitation with or custody of a grandchild under Texas law. They have to meet a heavy burden before a court will grant them custody. Under certain circumstances, grandparents have no rights concerning a grandchild, especially where neither biological parent is involved in the child’s life.
Grandparents in Texas do not have an automatic claim to their grandchildren. However, the Texas Family Code now includes statutes permitting grandparents to file a petition with the court requesting visitation with or custody of a grandchild. The grandparents are permitted to file a petition if their son or daughter is not an active participant in the child’s life for one of the following reasons: The child’s parent is in jail and has been incarcerated for at least three months; the child’s parent is deceased; the child’s parent was declared incompetent by a judge; or the child’s parent does not have custody of the child.
If a grandparent is unable to see a grandchild because the child’s parent is not involved in the child’s life, the grandparent can file a petition requesting access or visitation. If the child’s other parent objects to the grandparent’s involvement in the child’s life, a Texas judge can order specific visitation periods.
Grandparents are also entitled to file for custody of a grandchild. If the grandchild has been living with the grandparents for at least six months, they may be granted custody. Also, if the grandparents believe that the child’s parent is physically or emotionally harming the child, they may file a petition for custody.
Burden of Proof
Because providing a stable environment for the child is always the goal, Texas courts have set a very high burden of proof that must be met before grandparents will be granted custody. Along with the petition, grandparents must submit their allegations against the child’s parent, with supporting evidence. Judges will only award custody to the child’s grandparents if doing so will be in the best interests of that child. The grandparents must successfully prove that an emergency situation has developed that has endangered the welfare of the child and the grandparents' home would be a better environment.
The Texas Family Code limits the grandparents’ visitation and custody rights. If both biological parents have had their parental rights terminated, have relinquished their parental rights or are deceased, the grandparents have no right to request visitation with or custody of their grandchild. Also, if the child has been adopted out of the biological family, or adoption is pending, the grandparents have no legal claim.