When can a grandparent ask the court for custody or access of grandchildren? This is a complicated legal subject that is highly variable and dependent on the facts of each specific case.
The General Rule
Grandparent’s access to grandchildren typically flows from the parent’s access. Consider a scenario with Grandparent Gail, father Peter (Gail’s son), mother Molly (Gail’s daughter-in-law), and child Kyle.
Normally, Gail’s time flows through Peter and Molly’s access with Kyle. She would see Kyle at times and places agreed to by Peter and Molly. The same is true if Peter and Molly divorce; Gail would have to see Kyle when either Peter or Molly have possession of Kyle.
But what if Gail is denied access to Kyle by the parents? There are two main issues to overcome: the “fit parent” presumption and standing.
Fit Parent Presumption
A general presumption in Texas is that parents are fit and act in their children’s best interests, and to make whatever decisions they deem appropriate.
The Texas Supreme Court ruled in In Re C.J.C., 603 S.W.3d 804 (Tex. 2020) that as long as the Court finds the parent is a “fit parent,” a Court cannot grant a non-parent’s request for conservatorship or possession of a child. The Court expressly upheld the notion that fit parents should be able to make whatever decisions they believe are in their children’s best interests, including the children’s contact with other persons.
The CJC case effectively closes the door potential grandparent’s rights cases where the parent(s) are ably providing for the children.
An additional hurdle in grandparent cases is the concept of “standing,” meaning the legal right to bring an action. After all, not just anyone can bring a child custody case.
Standing is typically found where the person has a legal or longstanding family connection to the child, or is in actual care, custody, and control of the child.
Grandparents have standing to request access (i.e., a schedule) in just a few scenarios, such as if for some reason the related parent is unavailable. For instance, in the prior example if Peter is dead, missing, or incarcerated, and Gail’s access to Kyle is prevented by Molly, then Gail could petition the court for access if she could prove that her absence from the children’s lives (caused by Molly) was harmful to the children.
Finally, Grandparents have standing to request primary custody of children when their current circumstances present imminent health and safety concerns. This “grandparent takes over” scenario often occurs in cases of parental abuse, neglect, or absence from the children’s lives. These sad and difficult situations are often required because of unfit parenting.