Texas, like most states, uses a “parental presumption” in child custody determinations. The “parental presumption” means that, without a strong showing to the contrary, the family court judge will make custody determinations based on the principle that it is a parent’s right to decide who a child lives with or spends time with, barring a situation where the parent is unfit or that the parent’s decision endangers the emotional or physical well-being of the child.
There are, however, circumstances in which a grandparent can beat this parental presumption.
- Parental consent. A child’s parents can execute a power of attorney form authorizing the grandparents to care for the child and make financial decisions on behalf of the child.
- 6 month/90 day rule. A grandparent can file a lawsuit requesting a custody determination in the grandparent’s favor if the child has lived with the grandparent for at least six months and either still lives with the grandparent or moved elsewhere fewer than 90 days before the grandparent filed the custody lawsuit.
- The child is being hurt. If the child’s living conditions are hurting him or her, or if the people the child live with are hurting the child, then a grandparent may file a custody lawsuit regardless of the 6-month/90-day rule. The grandparents must present strong evidence that the child is being hurt currently. Evidence of past abuse or neglect will not be strong enough evidence in most cases. For example, if the mother was previously a drug abuser, but can prove she has been clean, then the court will be unlikely to remove the child from the mother.
- Both parents are absent. If both parents are absent, due to incarceration, abandonment, or death, then a court may award guardianship to the grandparents. If the grandparents are named the guardians of the child, then the court will also award custody.
Visit the Grandparents’ Page at the website of The Office of the Attorney General of Texas for more information and resources related to grandparent custody and visitation.
Contact Attorney Kevin Buchanan for Answers to Questions About Grandparents’ Custody Rights
Kevin Buchanan is a Dallas attorney offering family law clients skillful and experienced representation. He places a strong emphasis on fairness, and on treating all clients with dignity and respect. If you have questions about your rights as a grandparent to custody or visitation, he would be pleased to review your circumstances and offer his opinion. To schedule a private consultation, fill out the online intake form or call (214) 378-9500.