Often a divorce or break-up will not only affect the child's access to his or her parents, but it will also affect the child's access to his or her grandparents. Under current Texas law, grandparents are not automatically granted visitation or parenting rights as part of a child custody arrangement between parents. Grandparents may have visitation access to their grandchildren, generally with approval of one of the parents, and for a specified amount of time agreed to by both parents.
Another issue arises when neither parent is able to adequately care for the child as a result of substance abuse or other circumstances like mental illness. In this type of situation, a court order may allow a grandparent to step in.
Criteria for Securing Non-Parental Primary Custody
If it is in the best interest of the child to reside with the grandparent, there are legal options available to allow conservatorship with that grandparent. If the child has been in the custody of the grandparent or other relative for six months prior to filing a petition for custody, that grandparent or other relative stands a good chance of obtaining "managing conservatorship", which is the rights of a parent. However, if a grandchild has lived with a grandparent or other relative for at least six months, that grandparent or other relative must file for petition of custody within ninety days after the child has moved out of that home. An emergency situation involving the custodial parent may also lead to a successful petition of grandparent custody, if the court determines that a change is in the best interest of the safety and emotional welfare of the child.
If a parent contests the conservatorship, the burden of proof is on the grandparent petitioning for custody. This burden of proof is generally on two specific grounds:
- the child's health and well-being will be endangered if he or she remains in the parent's custody, and
- the child's life will be improved by living with the grandparent rather than the custodial parent.
This burden is significant for grandparents, but it is not insurmountable. A knowledgeable lawyer with significant trial experience is your best option.