Why, When and How Grandparents Can Gain Custody of the Grandkids

“At Connatser Family Law, we firmly believe kids should come first, and we have seen our share of cases where it is in the best interest of a child for grandparents to raise them,” says Texas family law attorney Aubrey Connatser. However, grandparents who hope for custody of their grandchildren should be aware that “being awarded custody is the exception, not the rule,” Aubrey says.

How you approach securing custody of or access to your grandchildren can also have a significant impact on the outcome of your efforts. “Grandparents should talk with a specialist in family law, because not every family law attorney is experienced in grandparent custody rights,” advises Aubrey.

You Need to Meet a “Standing” Threshold for Custody

“In the state of Texas, you need to have what is called “standing” under the Texas Family Code in order to sue for custody. For example, you can’t sue for custody of your neighbor’s kids, and there is good reason for that. A family law attorney with experience in grandparent custody cases can tell you if you meet the standing threshold for custody,” Aubrey says.

Most of the time, grandparents will take custody by agreement, where their adult children agree to relinquish custody of the children to them. When this isn’t the case, you would need to meet specific requirements under the custody statute. In addition, it’s also different to sue in order to be granted custody or “primary conservatorship” of your grandchildren, than it is to be awarded possession of and access to grandchildren.

There Is a Difference Between Custody and Access

“That’s an important distinction in the statute. There are certain reasons for which grandparents can sue to take custody away from the parents and gain primary custody of the child, and there are other situations where they can file to have regular access to the child. When it comes to access, grandparents have to convince the judge, among other things, that it would psychologically or emotionally impair the child not to have access to them,” counsels Aubrey.

“In order to sue for custody, grandparents must show they have had care, custody and control of the child for at least six months. This typically occurs in cases of voluntary relinquishment, where initially an adult child willingly relinquishes the child to their parents and then shows up later trying to get their kids back,” Aubrey says.

Keep a Calendar to Track Child’s Days with Parents and Grandparents

“It’s important to point out that there is a big misconception regarding whether the grandparent’s time with the grandchild must be continuous or uninterrupted. That isn’t the case,” says Aubrey. She recommends that grandparents keep a calendar showing when the child spent time with the parent to reinforce that the intent was always to return the child to the grandparent.

Grandparents also need to be mindful of filing deadlines. “There is a 90-day window following the surrender of the child back to the parent (or to another guardian or family member) in which the grandparent must file for custody. You may lose your opportunity to gain custody if you don’t meet the deadlines defined in the statute,” warns Aubrey.

Other Circumstances Where Grandparents May Seek Custody

Aside from the voluntary relinquishment scenario, there are other instances where grandparents can file for custody or access. “If one of the parents has died, the deceased parent’s parents may be able to sue. Also, the grandparents may meet standing requirements if the child has been placed with grandparents by child protective services because the child’s living circumstances with the parent is a danger to them. However, it is in pretty extreme circumstances where these situations occur, and it’s highly nuanced,” Aubrey advises.

That’s why seeking the advice of an experienced family law attorney is essential. A qualified attorney knows the intricacies of child custody cases and can help ensure grandparents meet important filing deadlines and overcome certain roadblocks toward meeting the standing threshold for custody.

Steps Grandparents Should Take to Help Gain Custody

While every grandparent custody case is different, there are some smart steps they can take to help suppport their case for custody. These steps include:

  • The aforementioned calendar.
  • Photographic evidence of the child–grandparent relationship.
  • Expert testimony of the child-grandparent bond by a reputable therapist.
  • Testimony from teachers, school officials, doctors, etc., who see the grandparent providing care, transportation and guidance for the child.

In cases where the grandparent can’t meet standing requirements, there can be other options. “Some grandparents opt for the guerrilla warfare mode. If you have something the adult children wants or needs – typically money or the purse strings – you can start negotiating,” Aubrey says.

There may be certain financial incentives you can employ and strings that you can pull. For example, Aubrey has seen cases in Texas where, “the grandparent is the trustee of the adult child’s trust, and they might cut off or reduce the amount of the trust the adult child has access to, unless they agree to voluntarily relinquish custody of the grandkids.”

Grandparents – Know Your Rights

According to Aubrey, “It is really good for grandchildren to be with their grandparents if they can provide more stability. It’s also better and cleaner to get a court order in place, so that mom or dad can’t come pull the child away at any time. This helps impose a little order upon the chaos, otherwise, the grandparents and grandchildren are constantly in a situation where the rug could be pulled out from under them at any moment.”

Aubrey consequently advises that “if you’re a grandparent, then you should figure out what your rights are as a grandparent and if you have a standing to sue for custody or access to your grandchildren. If you have the rights to move forward and can get a court order in place, then it’s better for everybody, especially the kids.”

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