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Under the Texas Family Code, there are certain circumstances where grandparents can file a suit requesting the court to grant them possession of or access to their biological grandchildren. However, there are certain statutory requirements that the grandparent must prove before the Court can award possession and access to grandparents in Texas.

First, the grandparent(s) must prove that at least one of the child’s biological or adoptive parents has NOT had their parental rights terminated. If both parents have had their parental rights terminated, the grandparents will not be able to get possession of or access to the child without first proving that it will be in the child’s best interest that possession and access be awarded.

Second, the grandparent(s) must show by a preponderance of the evidence that the children’s physical health or emotional well-being would be significantly impaired if the grandparent(s) were not allowed to exercise possession of or access to the children. In Texas, parents are presumed to be able to act in the best interest of their children. As such, the grandparents must rebut that presumption by showing that there would be a significant impairment to the children’s physical health or emotional well-being. This is a fairly high burden – one that will not be met simply by showing evidence that the grandchildren love their grandparents and they would be sorely missed if they were not allowed to see their grandparents. A significant impairment has been found in situations where the grandparents have established a continuous relationship with the grandchildren and assumed certain parental responsibilities – i.e. taking the child to their doctor’s appointments.

Third, the grandparents must prove that they have been wholly denied possession of or access to the grandchildren by the parent. Just because the grandparents aren’t seeing the grandchildren as much as they would like does not mean that they have been wholly denied possession or access. Remember, the court presumes that parents can act in their children’s best interest. As such, parents are also presumed to be able to determine appropriate visitation for the grandparents without having the Court order a specific schedule.

Fourth, the grandparents must be able to prove that they are a parent of one of the children’s parents and that one of the following is true about that parent of the children:

  1. The children’s parent has been incarcerated for at least 3 months before the petition was filed;
  2. The children’s parent had been judicially declared incompetent;
  3. The children’s parent is dead; or
  4. The children’s parent does not have actual court-ordered possession of or access to the children.

There is no standard schedule that the court must order if a grandparent is awarded possession of or access to the grandchildren, but the court will typically order some weekend and holiday periods of possession for a grandparent who meets all of the above criteria.

It is important to keep in mind that the requirements listed above are only for grandparents seeking possession of or access to their grandchildren. The Texas Family Code details a different set of requirements when grandparents are seeking custody of their grandchildren.

Being agreeable while ending your marriage can save both of you from unnecessary grief and litigation cost. But there are important reasons to contest a divorce, times when you should choose not to compromise with your soon-to-be former spouse.

The first reason is plain and simple – when you believe the safety and welfare of your children will be jeopardized if you choose to compromise. Let’s be honest, when it comes to divorce emotions run high and all too often parties get hung up on “besting” the other parent to the detriment of their children. A zero-sum game framework is not conducive to a healthy co-parenting relationship.

Designation of Primary Conservatorship

The number one issue we’ve seen driving contested divorces in Texas is when parents disagree on who will decide the primary residence of the children. The parent with this right is designated as the primary conservator. This parent gets to designate the primary residence of the children and generally is also the parent who will receive child support. This is certainly an important right, but in practical application, it may mean much less than you think. This is because conservatorship in Texas consists of two parts – designated by the Court as “rights and duties” and “possession and access”. Just because a party has the right to designate the primary residence of the children does not mean that they have the exclusive right to make all other decisions for your children. All other rights listed below can be designated exclusively to one parent, joint (decision must be made together), or independently (each parent can make the decisions on their own), so just because you are not the primary conservator does not mean that you do not get to have a say in important parenting decisions. You need to consider these aspects when preparing for a contested divorce in Texas.

Parental rights independent of sole conservatorship

  • The right to consent to medical, dental, and surgical treatment involving invasive procedures.
  • The right to consent to psychiatric and psychological treatment of the children.
  • The right to receive and give receipt for periodic payments for the support of the children and to hold or disburse these funds for the benefit of the children.
  • The right to represent the children in legal action and to make other decisions of substantial legal significance concerning the children.
  • The right to consent to marriage and to enlistment in the armed forces of the United States.
  • The right to make decisions concerning the children’s education.
  • Except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the children.
  • Except when a guardian of the children’s estates or a guardian or attorney ad litem has been appointed for the children, the right to act as an agent of the children in relation to the children’s estates if the children’s action is required by a state, the United States, or a foreign government.
  • The duty to manage the estates of the children to the extent the estates have been created by community property or the joint property of the parent.

Authority over the visitation schedule is important and can be a major issue affecting contested divorces in Texas. If you ask for an expanded standard possession schedule the time each parent gets to spend with the children is nearly even. With an expanded standard possession schedule, possession and access begins and ends at the time the children start and are dismissed from school. So, instead of picking up the children at 6:00 PM on Friday and dropping them off on Sunday at 6:00 PM, you will pick them up at school on Friday afternoon and return them to school on Monday morning. This gives you one extra overnight period of possession. Additionally, instead of having the children for Thursday dinners during the school year from 6:00 PM to 8:00 PM that same evening, you get the children from the time they are released from school on Thursday until they return to school on Friday morning every week during the regular school year.

With all of the above in mind, if you believe that the safety and welfare of your children will be endangered by compromising on a specific issue, then it’s absolutely a reason to contest your divorce. Attorney’s fees can get expensive during contested divorces in Texas, but some issues are too important to avoid during a divorce – if you do not bring them up now, you may not have the opportunity later. Modifying an existing order can be difficult – you have the burden to show a material change in circumstances since the underlying order was signed. Except in very limited circumstances, you cannot introduce evidence of things which took place prior to the divorce. Furthermore, if an issue was not important enough to bring up in the initial proceedings, the Court will require good cause to show it is important enough to modify an order after the fact.

It is important to weigh the costs and benefits of any legal action in your divorce. However, when it will benefit your children in the long run, this may be the time to dig in your heels and fight.

In your divorce, fighting only for the sake of “winning” will only draw out the process and negatively impact everyone involved. If both of you are excellent parents who love and care for your children, an uncontested divorce will minimize the impact on your children – and you.

Putting it all Together

Before you initiate your contested divorce in Texas, it’s important to decide if your reasons to contest the divorce are worth the added time and expense for you, the other party, and for your children. An expert attorney will help you determine the best course moving forward, working to the best possible outcome for all involved. If you’re looking for a divorce in the greater Houston area, contact Ramos Law Group and schedule your initial consultation with some of Texas’ best Family Law attorneys.

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