You’re finally a grandparent. You may have thought about it, dreamed about it, or dreaded it for years, but it’s finally happened. You’re not just mom or dad anymore. Now you’re Gramps or Memaw, Pop or Nana, or some other distinguished name. The plan was to babysit and spoil the grandchildren and then give them back, spoiled rotten to the core. But, something went wrong along the way.

Now your grandchildren’s parent or parents aren’t what’s best for some reason. Now you need to get custody of or visitation with your grandchildren because their parents aren’t behaving with their best interests in mind. Now you need legal help. Let’s start with custody.

Grandparents Rights In Texas

It is a common misconception that grandparents automatically have a right to see their grandchildren when the children’s parents get a divorce. However, in 2000 the United States Supreme Court held that the Due Process Clause of the 14th Amendment,

“protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.”

Based on this fundamental right, the Court held that parents may prevent grandparents from visiting with grandchildren. In other words, grandparents have no constitutional right to visit with their grandchildren until a Court says they can.

In response to that Supreme Court opinion, many states, including Texas, enacted legislation that gives family law courts discretion to grant grandparents’ visitation over the objection of the parents if certain requirements are met. It is a difficult battle to fight, but it can be done with the help of an experienced Texas Family Law Attorney.

Can A Grandparent Get Custody Of A Grandchild In Texas?

If an attorney tells you an absolute yes, you might think twice about it. It’s never a yes, but it’s usually a maybe. Getting custody of children when you’re a grandparent isn’t easy, but it’s possible under the right circumstances. It wouldn’t be reasonable to think that a Judge or our legal system would let anyone, including grandparents, take children away from perfectly good parents.

How Can Grandparents Obtain Custody of Grandchildren in Texas?

If the grandchildren have lived with the grandparents for at least six months, and it can be proven that the grandparents have exercised ‘care, control and possession’ of the children, then the said grandparents have a good case for gaining conservatorship. The children do not have to be living with the grandparents at the time the petition is filed. If the children lived with the grandparents for a period of six continuous months, the petition can be filed within 90 days of the date the children stopped living with the grandparents.

If the grandparents allege the children are being harmed by the parents, the court will hold a hearing and consider all relevant evidence including testimony of friends, neighbors, teachers, experts in the field and any other person who may assist the Court in making its custody determination. Depending on the age of the children, the court may interview them privately in chambers and take into consideration their testimony of what happened to them and ask them with whom they would prefer to live. The court’s final decision will be based on what it determines to be in the best interest of the children.

If both of the parents of the children agree that the children should live with the grandparents, or if one parent agrees and the other one is deceased, the court will most likely award custody of the children to the petitioning grandparents.

If you are currently caring for your grandchildren but do not have parental rights or legal custodial rights, you need a family law attorney’s help to establish your grandparents rights legally. Legal conservatorship is needed to make important decisions for your grandchildren.  From enrolling them in school, to providing insurance and seeking medical care, legal custody must be grated.

What are my chances to gain custody over the objections of a parent or parents?

The short version is that it’s not easy to get custody of a grandchild over the objections of a living, legally competent parent.

How To Get Custody of Grandchildren in Texas

In order to make a successful bid for custody of grandchild[ren], the grandparent must overcome the legal presumption that awarding a parent, or both parents primary custody, would significantly impair the child’s physical health or emotional development.

This is a difficult burden to overcome, and it requires the skills, knowledge and dedication of top-notch lawyers that know the law, know the facts and are experienced in the courtroom. A grandparent vying for custody might show the Court that the parents are battling addiction problems.  They might also show that the parent is putting the child or children in dangerous situations via the parent’s choice of a new partner or partners.  The list is almost endless because it’s all fact driven – the facts about your grandchildren, their parents, and you.

Proving Custody: Getting a Court Order for Grandparent Custody of Child

Once you get an order for custody of your grandchildren, protect it and protect your position as these children’s conservator.  Get several copies of the order and give one to everyone important in these children’s lives:  Doctors, school administrators, child care facilities, counselors, even police or close friends in some circumstances.

If a child is old enough to understand what has been happening with their parents and grandparents, getting them to the right therapist may help stem future issues they might face.  You might also ask that person some questions of your own, like how to answer the tough questions – What’s wrong with my mom?  Why didn’t my dad want me?  Don’t my parent’s love me?  The attorneys at ONDA have worked with some of the best counselors available, and we will be able to help you find the right one for your grandchildren. We also have the connections to present you with options for other resources that you may need before, during and after a grandparent rights and grandchild custody case.


While the law governs a grandparent’s legal right to visitation, some grandparents may be able to resolve their cases out of court. According to the article in the Huffington Post, communication between the parents and the grandparent is key to such a solution.

If all parties are focusing on the best interests of the child, they may be able to come to a resolution outside of court. Indeed, approaching a parent with a reasonable visitation schedule may convince a parent that visitation with your grandchild should be on the table despite other contentious issues surrounding the divorce.

Grandparent Visitation Rights

Logically, most people think that the burden for getting visitation is not as difficult as that for getting custody. In fact, the burden is every bit as difficult and, in many circumstances, even more. As we think about it, it makes sense. If we are going to effect the rights of a parent at all, we have to first show that the parent is presenting some kind of harm to the child and if that’s happening, shouldn’t the grandparents be trying to get custody and not just visitation?

Reasons For Grandparents Wanting Visitation Rights With Grandchildren

There are many reasons why a break in a grandparent/grandchild relationship can happen.  The most common is the result of divorce of the child’s parents, with custody going to the parent that is not your child.  Unfortunately, there are numerous other reasons you may be being denied access to your grandchild.  It could be that your child is incarcerated and you don’t have a good relationship with your grandchild’s other parent.  It could be that your grandchild has been places in foster care, or another family member has taken custody of them.  Whatever the case, it has caused you to lose access to or contact with your grandchild, and surely you never expected that you would be looking for a family lawyer to get visitation rights with your grandchildren.  We can help you fight for legal access to your grandchild, even of the objections of the legal guardian.

What Must Grandparents Do To Obtain Visitation Rights in Texas?

Although the Texas Family Law Code has a provision for grandparents to file a lawsuit and petition the court for an order allowing them visitation, a simple desire to spend time with the children is not enough to overcome the presumption that the parent knows best. For grandparents to have a chance at being granted visitation, they must show that their child, who is a parent of the grandchildren, is their biological or adoptive child who still has parental rights to the child or children.  In addition, the grandparents must prove one of the following things:

  • The parents are divorced; or
  • The grandchild’s parent has been incarcerated for at least three months prior to the date of the filing of the petition; or
  • The court has found the parent to be incompetent; or
  • The parent is dead; or
  • The parent does not have court-ordered visitation or access to the child.

Even if the requirements have been met, the grandparents must then prove that the children will suffer either physical or emotional harm if they are not allowed to visit with their grandparents. If the children have been adopted by anyone other than a step-parent, the court will dismiss the petition without even holding a hearing. It sounds counterintuitive, but it’s usually harder for grandparents to seek visitation with their grandchildren than it is for them to seek custody. The theory here is that if you can show the parents are a danger to the grandchildren, they need for you to have more than just an occasional visit.

Start With A Visitation Request

Before you even have the right to seek assistance from the court in the form of Court Ordered Visitation, you must attach to your request filed with the court a sworn statement that says that a denial of your access to your grandchild would significantly impair the child’s physical health or emotional well-being. If you cannot meet this requirement, the Court must deny the relief you request and dismiss your suit without a further inquiry or hearing.

As you can see, this is something of a mountain that you must climb. You will need a dedicated and talented family law attorney to assist you in scaling that mountain to pass the initial obstacle of standing.

What You Must Prove If The Court Accepts The Request for Court Hearing

Once you have made it past the standing issue, your next task is to show that you meet at least one of the following criteria:

  1. At least one biological or adoptive parent of the child has not had that parent’s parental rights terminated. This means either your child or the other parent (or both) must not have had their parental rights terminated.
  2. You, the grandparent requesting access, must overcome the presumption that the parent denying you access is acting in the best interest of the child. You must overcome this presumption by showing that not allowing you court ordered access to your grandchild would significantly impair the child’s physical health or emotional well being. Does this sound familiar? It should because this is the first mountain you climbed and you were successful. But now the parent denying you access gets an opportunity to disprove what you put in your affidavit to get to this point.
  3. You, the grandparent requesting access, must show that YOUR CHILD is:
    • Incarcerated in jail or prison during the three-month period preceding the filing of the petition
    • Has been found by a court to be incompetent
    • Is deceased OR
    • Does not have actual or court ordered access to the child.

As you can see, fighting for visitation with your grandchildren takes a lot of sustained effort and legal expertise. Our team of legal experts is well poised to fight in your corner so you can get visitation rights with your grandchild.

Enforcing Grandparents Rights

You have won the case and now have either custody of or visitation with your grandchildren. But what happens if the parent or parents aren’t following what the Court has rendered? The method of relief is called a Motion for Enforcement. It is a pleading filed with the Court which sets out in detail each way that the parent(s) have violated the Judge’s Order.

The Court then has the ability to grant a variety of remedies. It can order the parents to pay attorney fees, pay fines, post a bond to secure their performance in the future, grant make-up visitation, or find the parents in contempt, which can mean jail time. The last one – contempt – is more technical than the rest because incarceration is a possibility, but it’s also the remedy with the sharpest teeth.

Fighting for Grandparents Visitation & Custody Rights in Texas

Jeff Anderson Family Law Attorney is board certified in family law by the Texas Board of Legal Specialization and has 25+ years of experience helping people just like you get the legal rights they need to care for and visit their grandchildren. Whatever the scenario, we can help. Our firm has family law offices in Dallas including Frisco, and Highland Park.

Until the Supreme Court decision in 2000, it was easier for grandparents to have Court-ordered access, possession and custody of their grandchildren. It’s no longer that easy, but it’s still possible. It just takes an attorney with the right skill set and talent. Contact Jeff Anderson. He will guide you through the process and help you develop a strategy to win one of the most important battles of your grandchild’s life.

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