Grandparent Access to a Child
By Earl N Jackson
    Dallas, Texas

Note -- this page will be updated in the near future. There have been significant changes to the law since its' creation in response to the Troxel decision.

In June, 2000, the U.S. Supreme Court in Troxel v. Granville, in one of its rare decisions in the Family Law area, reshaped the definition of family by determining who has the power to control possession of minor children. The decision has been hailed as a victory for parents rights and a defeat for grandparents rights. 

Texas law provides for both conservatorship (custody or rights incident to custody) of a grandchild and possession and access to a grandchild by a grandparent. These concepts are distinct. In the one incident, we are talkiing about a grandparent having the rights and duties of a parent during periods of possession. In the other instance we are talking about a grandparent's possession and access to a grandchild without the rights and duties of a parent conservator.

Grandparent Conservatorship

The controlling  statute for conservatorship by a grandparent is set out in Section 102.004 of the Texas Family Code. This statute provides authority to a grandparent to seek conservatorship.

Subsection A states that a  grandparent may seek managing conservatorship in an original suit if there is satisfactory proof that:

1. the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or

2. both parents, the surviving parent, or the managing conservator filed the petition or consented to the suit.

Subsection B goes on to state that an "original suit" requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so if there is satisfactory proof 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. 

Summary, if the child's present circumstances would significantly impair the child's physical health or emotional well being, the grandparent can file an original lawsuit. Or, if both parents, the surviving parent filed the petition for grandparent access or consented to the suit, then the grandparent can seek conservatorship.  Failing this circumstance, Subsection B applies where in the grandparent cannot file an original lawsuit but may intervene in a lawsuit (divorce or modification of divorce decree) with leave of court if the grandparent has had substantial past contact with the child and there is proof that appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional well being.  Subsection B is a difficult threshold to cross. A grandparent cannot just intervene in a lawsuit. The grandparent must have the court's permission to do so and must show the impairment to the physical health or emotional development of the child.

If the grandparent is successful under this statute, then possession of or access to the child is governed by the standards set forth in Chapter 153 of the Texas Family Code - the possession and access with the rights and duties incident of a parent conservator.

Although the Texas Family Code provides a specific conservatorship statute as applied to grandparents, Section 102.003 may also apply to the grandparent. This statute provides for general standing to file suit for conservatorship. So, if the grandparent conservatorship statute does not fit the grandparents fact pattern, the grandparent should look to the general standing provisions to see if one of those statutes might apply.  Applicable provisions are as follows:

1. Subsection (a)(9) -- a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition has standing to file for conservatorship of the child.  If the child is living in the grandparent's home for a period of six months or more, the grandparent has the right to file for conservatorship. Note, there is a 90 day deadline in this statute. The grandparent must bring their lawsuit within 90 days of the date in which their possession and control of the child ended.

2. Subsection (a)(11) -- a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition. If the child and the child's parent resided with the grandparent and the parent then died, the grandparent may then file for custody (conservatorship). Again, note the 90 day deadline.

3. Subsection (a)(13)  -- a person who is a relative of the child within the third degree of consanguinity, if the child's parents are deceased at the time of the filing of the petition. If both parents are dead, the grandparent has standing to file an original lawsuit for custody. So does the child's brother, uncle, aunt, etc.  Note, there is not deadline for filing in under this statute.

Possession and Access to a Grandchild

Texas family Code Chapter 153, Subchapter H applies to a suit for Possession or Access by a grandparent. Chapter 153.432 states taht a biological or adoptive grandparent may request posession of or access to a grandchild by filing an (1) original suit or (2) a suit for modification of an existing order. The grandparent may request possession of or access for the sole purpose of requesting the relief without regard to the issue of appointment of a managing conservator. In other words, the grandparent may file their original suit for grandparent possession and access and not seek the powers and duties of a conservator. This is not custody, this is possession and access only.

To prevail, however, the grandparent must comply with Chapter 153.433 wherein it states that the court shall order reasonable possession of or access to a grandchild by a grandparent if:

1. at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated. If both parents have been terminated, grandparents are out.

2. the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving that denial of possession of or access to the child would significantly impair the child's physical health or emotional well being.  The presumption is that a parent is acting in the best interest of the child, in order to be successful, the grandparent must prove that the parent is not acting in the best interest of the child by showing that denial of possession and access would significantly impair the child's physical health or emotional well being. AND

3. the grandparent will have to show that they are the parent of a parent of a child that (a) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (b) has been found to be incompetent; (c) is dead; (d) does not have actual or court-ordered possession of or access to the child.

Limitations on grandparent possession and access to a grandchild are set forth in Chapter 153.434 of the Texas Family Code. A biological or adoptive grandparent may not request possession of or access to a grandchild if each of the biological parents of the grandchild has:

1. died;*

2. had the person's parental rights terminated; or

3. executed an affidavit of waiver of interest in the child or an affidavit of relinquishment of parental rights and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child's stepparent as the managing conservator of the child and the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent. If the child is in the process of being adopted or has been adopted, the grandparents are out.

*Note how chapter 153.434 seems to conflict with 102.004 (a)(13). Chapter 153 is about possession and access. Chapter 102 is about conservatorship. The grandparents are out under Chapter 153 but may still seek conservatorship under 102.