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:
- The children's parent has been incarcerated for at least 3 months before the petition was filed;
- The children's parent had been judicially declared incompetent;
- The children's parent is dead; or
- 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.