Suit for Grandparent Possession or Access – An everyday person unfamiliar with family law would assume that a grandparent has the inside track in any suit affecting the parent-child relationship – such as a conservatorship suit where a parent is not involved or deemed unfit.
After all, the grandparent is family. The court should see that as being in the child’s best interest.
In some cases, the answer is yes. But grandparent rights are tricky. I can tell you even in instances where a grandparent has been caring for the child, they are still treated like any adult looking to gain conservatorship. They must prove they are competent and they must satisfy certain requirements outlined by the Texas Family Code.
Some of those requirements are easy to satisfy, others not so much. We have discussed those requirements in previous blogs, so the purpose of this blog is to outline an alternative suit grandparents can file if they cannot meet the requirements of a conservatorship suit. It is called a suit for grandparent possession or access.
In winning this suit, a grandparent can approach, communicate with, and visit with the child. But more importantly, they would have the right to take possession of the child for limited periods of time outside the presence of the parent or conservator.
Essentially, this suit gives the grandparent a right greater than supervised access but less than possessory conservatorship. Hence, they have possession of or access to the child.
With that said, grandparents still must prove all of the following to obtain possession or access:
* The parent’s rights have not been terminated – Per the Texas Family Code, at least one of the child’s biological or adoptive parents must still have their parental rights intact.
* Significant impairment – When a parent has custody of a child, the grandparent must prove that the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s possession or access were denied. When someone other than the parent has custody, several courts have held that a grandparent does not have to prove impairment.
* Denial of possession – The grandparent must prove that the parent intends to completely deny the grandparent from having possession of or access to the child.
* Grandparent is related – The grandparent must prove they are the parent of the child’s parent.
* Child’s parent is unavailable – The grandparent must prove the child’s parent is unavailable either through incarceration, incompetence, death, or no court-ordered possession or access.
Remember, only a biological or adoptive grandparent can file an original suit for possession or access. And in general, the trial in a suit for grandparent possession or access is the same as in other suits affecting the parent-child relationship (SAPCRs).
Was this blog helpful? If you have additional questions on this or any other topic we have discussed in the past, please give our knowledgeable staff at Nelson Law Group, PC a call. Our staff is always available.
