In my last post we discussed a very brief background of the evolution of grandparent’s rights in Texas. Now I will provide you with a brief synopsis of the law as it currently stands. The information below is taken from the Texas Family Code and an excellent article written by Jimmy L. Verner, Jr. of Verner & Brumley, P.C. I really like the way Mr. Brumley organized and explained the current law as it relates to grandparent’s visitation with their grandchildren. I have made a few changes to the wording to try and simplify the legal jargon. I wanted to put a direct link to the article in this post, but it appears the link is broken on their website. This is the link to their “Resources” page where the article is located. There is tons of good information on this page.

Managing Conservatorship

Grandparents can seek managing conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exist. Managing conservatorship typically means custody in this type of case, but does not have to mean that. It could simply mean that the grandparent has rights to make decisions regarding the grandchild’s upbringing. An “intervention” means that there is already a lawsuit pending regarding the child and they simply joins the lawsuit.

1. They have had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
2. The grandchild and the grandchild’s guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit; OR
3. The grandchild’s present circumstances would significantly impair the grandchild’s physical health or emotional development (meaning that where the child currently lives with the parent presents a danger to the child either emotionally or physically) ; OR
4. Both the grandchild’s parents, the surviving parent, or the managing conservator either filed the lawsuit for the grandparent to have managing conservatorship or have agreed to it.

If any of the above four exists then there may be a case for seeking custody or visitation of the grandchild.

Possessory Conservatorship

A grandparent may seek possessory conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exists. Possessory conservatorship is NOT custody and would be more like a visitation lawsuit. However, it differs from a visitation lawsuit in that they may be granted certain rights with regard to the upbringing of the grandchild.

Original Lawsuit OR Intervention

1. The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
2. The grandchild and the grandchild’s guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit;

The above two allow the grandparent to file and original suit or an intervention for possessory conservatorship if either is met.

ONLY an Intervention

A grandparent can file ONLY an intervention for possessory conservatorship if the following two are met:

1. They have had substantial past contact with the child; AND
2. They make satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.

Grandparent’s Visitation

A grandparent may seek access to a grandchild by original suit or intervention if ALL THREE numbered circumstances exist PLUS one or more of the lettered circumstances exist:

1. At the time the lawsuit is filed, at least one biological or adoptive parent of the child has not had that parent’s rights terminated; AND
2. They prove that denial of access to the child would significantly impair the child’s physical health or emotional well-being (this will take more than just saying so … you would need a professional to confirm this); AND
3. They are a parent of the parent of the child; AND
   1. The parent has been incarcerated in jail or prison during the three month period preceding the filing of the lawsuit; OR
   2. The parent has been found by a court to be incompetent (a separate lawsuit); OR
   3. The parent is dead; OR
   4. The parent does not have actual OR court-ordered possession of or access to the child.

You can see that this statute is very limited. Letters a. through d. severely limits who can file suit. This statute used to include a lettered provision for divorced or separated parents as well as the four you see, but that provision was removed as a result of the Troxel case referred to in my earlier post. You can see what the removal of this provision did to the ability of a grandparent to seek access to the child.

This is simply a quick reference guide to the existing law. If you need help, contact a lawyer to discuss your options. DO NOT simply rely on this post and throw up your hands. There may still be a chance, and until you speak to a lawyer, you will never know.