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Grandparents’ Rights in Texas Family Law

Grandparent’s rights in Texas can be tricky to navigate. If you have questions about your rights as they pertain to time spent with your grandchild, call an experienced child custody attorney at Scroggins Law Group, PLLC today and allow us to guide you through the process.

What Rights do Grandparents have in Texas in Regard to their Grandchildren?

Through its ruling in Troxel, the United States Supreme Court established a rebuttable presumption that parents act in the best interest of their children. This decision effectively decimated any grandparent’s right to petition for access or custody to their grandchildren unless special circumstances are at play (explained below). Parental decisions pertaining to possession and access will most often be determined to be in the best interest of their child and will therefore supersede grandparent’s request for access. While some states have ruled that Grandparent Visitation statutes are unconstitutional, Texas has yet to do so. Chapter 153 of the Texas Family Code governs grandparent possession and access of their grandchildren.

Grandparent’s Visitation Rights in Texas

In Texas, there are a few ways grandparents can petition for visitation rights to their grandchild. It is important remember that even if any of these circumstances apply, grandparents will still not be granted access to their grandchild if it is not deemed to be in the child’s best interest.

Grandparent Visitation rights may be granted if: 

  • At least one biological or adoptive parent has not had their parental rights terminated;
  • The grandparent requesting possession overcomes the presumption in Troxel by proving that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; AND
  • The requesting grandparent is a parent of a parent of the child and the child’s parent:
    • Has been incarcerated;
    • Has been found to be incompetent;
    • Is dead; OR
    • Does not have court-ordered possession of the child
  • A grandparent may also petition for access if the child has lived with them for more than 6 months (this can happen in various situations, most often when the parents have drug, alcohol or severe mental health issues).

A Grandparent may NOT request possession or access if:

  • Each of the biological parents of the grandchild has:
    • Died;
    • Had their parental rights terminated; OR
    • Executed an affidavit relinquishing parental rights and designating Child Protective Services, another placing agency, or a person other than a step-parent as managing conservator of the child; AND
    • The grandchild has been adopted or is in a pending suit for adoption

Grandparents thinking of petitioning for possession and access rights, joint managing conservatorship, or other conservatorship rights must keep in mind that even if one or more of these circumstances are present with one parent, they still may not be granted court-ordered visitation rights to their grandchild. For example, if the child’s father goes to prison but the mother has no record and a stable lifestyle, she is still presumed to be acting in the child’s best interest. If the mother decides to limit her own parent’s access to the child, that decisions will likely stand up in the eyes of the court. However, if the paternal grandparents have had an established relationship with their grandchild and mom decides to suddenly restrict access, paternal grandparents may be able to successfully petition for visitation rights.

What does it mean to be an active Grandparent prior to divorce?

An active grandparent is simply someone that has played a significant role the child’s life prior to divorce. Characteristics of an “active” grandparent may vary, but general indicators may be:

  • Grandchildren stay with them frequently
  • Significant involvement in child care:
    • Driving to or picking up from school
    • After-school care
    • Attending school-related and extracurricular activities

Unfortunately, not much can be done in the way of possession and access for grandparents who have not played an active role in their grandchild’s life. Additionally, being an active grandparent does not provide any guarantee that a court will grant rights to visitation or conservatorship of your grandchild.

Seeking Full Custody of a Grandchild

It may become necessary to seek full custody of a grandchild if one or both parents have abused or neglected their child. Instances of drug and alcohol abuse may also warrant a change in custodial arrangements for a child. Grandparents may seek to be named sole managing conservator and thereby obtain the right to decide the primary domicile of their grandchild. However, unless both parents are unable to act in the best interest of the child and that is proven in court, it is unlikely a grandparent will be awarded sole managing conservatorship of their grandchild. For example, if mom has a history of abusing her daughter but dad has separated from mom and is able to protect his daughter from the abuse, dad will likely be found to be acting in the best interest of his child and therefore will retain the right to grant or restrict grandparent access.

Does adoption have a major effect on the visitation rights of a grandparent?

If a child has been adopted, both biological parents have, by definition, terminated their parental rights to their child (unless you are doing a stepparent adoption). Grandparent rights are vested through lineage, meaning that if your children have terminated their own rights of possession and access, and you have not acted prior to both parents terminating their parental rights, it is likely that you have done so as well, even if inadvertently. Adoptive grandparents may petition for possession and access to their grandchild in the same manner as biological grandparents.

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