The best interest standard is one that is utilized in any Texas family law case that involves children. The best interests of your child can be determined by accounting for several factors intended to take into consideration several factors related to your child’s physical, mental, and social health. The component to this determination is that your grandchild’s circumstances will be considered a great deal, as well. As with any family law case, the facts of your case become just as important, if not more important, than the statutory factors that are laid out in the Texas Family Code.
The Texas Family Code allows for grandparents to be assigned visitation and possession rights to their grandchildren under limited circumstances. This may feel incredibly unfair to you. For one, you love your grandchildren and would do anything for them. For another, you tend to think that your grandchildren do better with you than in their own home. You can see smiles on their faces more frequently at your house than at their own home. In your heart of hearts, you think the kids are better off with you than with your child and their co-parent. Your main concern lies in doing as much as you can for your grandchildren even if you do not get to see them as often as you would like or as often as you used to be able to.
So, you can get what you want as far as court-ordered time with your grandchildren. You can earn visitation time with them where you have set aside time each month where you can spend time with your grandchildren, take them for outings and generally build a relationship with them. Additionally, you can gain conservatorship rights regarding your grandchildren. Conservatorship rights are what your child and their co-parent have about the grandchildren. Being able to make decisions for your grandchildren, holding duties in terms of caring for them, and generally overseeing their daily lives. Either of these scenarios may sound good to you based on your current circumstances.
When the state of Texas presumes that your child is acting in the best interests of your grandchildren by denying them visitation and possession time with you that means that it is presumed their behavior is correct or well-founded. Your intentions, however well-meaning, are not sufficient in and of themselves to overcome this presumption. You could show a judge that you are the best grandmother in the world who only wants to love your grandson. However, if mom doesn’t want you to see your grandson all the love in the world isn’t enough to overcome the Texas Family Code.
That doesn’t mean that it’s impossible or impractical to follow your heart and try to gain some legal standing to spend time with your grandchildren and to develop a relationship with them. What you need to do is to determine how to align your heart with the law. If what your heart wants lines up well with what the law says you can do, then you found your sweet spot. Otherwise, you may be in for a case of heartache if you begin a family case with the best of intentions only to find out that you have no case to move forward with. This is why you’re reading a blog post like this. To learn more about the law and to learn how the law could help you rebuild and strengthen a relationship with your grandchildren.
While reading blog posts like this is a good start it is not where your journey to collect information should end by any means. I recommend that you contact an experienced family law attorney for even more fact-specific knowledge to draw from. There you can ask questions, receive feedback, and get a general feel for how strong of a case you have. Asking questions about how much a case would cost, how long the case could take, and what you will likely go through are good places to start. Balance your questions with some listening as well and you will be in a good place.
Winning visitation or custody of your grandkids isn’t easy
Any attorney who tells you that it won’t be difficult to win custody or even visitation rights to your grandchildren is not telling you the truth. These cases are a struggle- but they can be completely worth it if you have a strong set of evidence and a willingness to proceed in the face of hardship. Trying to win custody or visitation means being prepared for the case, the reaction from your child and your reaction should you not be successful. Having an attorney is a great way to prepare for this possibility.
Bear in mind that it is your burden to prove that it is in your grandchild’s best interests for you to have visitation or custody rights. It is difficult to overcome this burden and judges do not look for any reason under the sun to help grandparents. If they did, every grandparent out there would be looking to head to court to gain some conservatorship rights to their grandchildren. As it is, you need to have your ducks in a row when it comes to winning custody or visitation rights to your grandchildren. Fortunately for you, it is entirely possible to win a grandparent’s rights case.
For starters, you need to have some physical evidence that proves your grandchild is endangered at the time of the filing of your case. It is not sufficient to show that it is likely that your grandchild will be endangered in the future while at home or his or her parents. Rather, you need to show that their current circumstances make it more likely than not that your grandchild is currently in harm’s way. This is where you need to be sure that their dangerous circumstances facing your grandchild and that you can provide something tangible to a judge to prove this.
Your child may be incarcerated. I have worked with grandparents whose son was in prison and whose spouse was not far behind. Meanwhile, the grandkids were living with an aunt who was not allowing grandma and grandpa to have any time with the kids. The prospect of never seeing their grandchildren again began to understandably weigh on the grandparents. They sought out our office because they had spoken with friends who had heard good things about our attorneys’ ability to win on tough cases like theirs. Being able to step in as grandparents with prior relationships with the grandkids can be a great way to show that you are in a good position to take on visitation or custody rights.
Next, physical evidence that your child or your child’s co-parent is using drugs in the home can be evidence that can show a judge that you deserve to have visitation or custody rights to your grandchildren. It doesn’t take a smart person to figure out that if drugs are in the home with your grandchildren that bad things can happen. Drugs tend to attract unsavory people and unsavory circumstances. Drug deals going on in the home, strangers staying overnight, and the other aspects of drug use while parenting is all major red flags. Remember that the grandchild must be engaged at this very moment in time. It cannot be anticipatory.
Child abuse and/or neglect are the other main way to show that your child is currently in a situation that is unhealthy and dangerous. How do you show evidence of abuse? Photographs of the children are a good place to start. Witness testimony that describes these events can be very persuasive as well. The key to building a case is following the law and being intentional about what you do. Trying to come up with a plan the day before a hearing on an important subject like this would be a major mistake. Rather, the best thing you can do for yourself is to work with an experienced attorney to have a plan in place for the beginning of your time working to win custody or visitation of your grandchildren.
Bear in mind that sometimes you cannot afford to wait to do something about a situation for your grandchildren. If you truly believe that they are in harm’s way and immediate danger then you need to do something about it immediately. Bear in mind that there are steps you can take in terms of contacting law enforcement and things of this nature but the most practical thing you can do is to contact an attorney and develop a plan with him or her. An attorney can help you too Get the facts and circumstances of your case straight and begin to collect information that can be utilized in a hearing or trial.
what you need to be aware of is that the same laws that provide you with the information regarding when you can pursue custody and possession rights of your grandchildren also tell you when you cannot do so. one example of this would be when you do not have the right to request visitation with your grandchild as if your child biological parents have their parental rights terminated voluntarily. The bottom line is that one of your grandchild’s parents needs to have their parental rights still in place for you two to pursue visitation or possession rights. some of these circumstances may have never entered your mind so it pays to be aware of the law before you actively start to participate in this type of case.
Know who your grandchild is spending their time with
If your goal is to be able to proceed with the court case in which you can take custody of your grandchildren from your child, then you have a fairly steep burden to clear. Keep in mind that there are reasons why you could sue to take custody away from your child and to be able to gain primary custody yourself. This is a different circumstance than simply trying to win visitation rights to your grandchildren. In this case, you would need to be able to show a judge that it would be against the well-being of your grandchildren for them to be denied visitation and access with you. From there, a court could determine how much visitation will be appropriate depending upon your specific circumstances.
On the other hand, to be able to successfully sue for primary custody of your grandchildren you would need to show that you have had care, custody, and control of your grandchild for at least six months before your filing the case. This can occur in situations where your child has voluntarily given your grandchildren to you when they were not able to care for them. During this time your grandchildren may have grown exceedingly close to you and vice versa. You may have also learned about tough times at their home and maybe unwilling to give up temporary custody of them to your child.
I can only imagine that this is a difficult situation for you to be in. Namely, you would have taken on the massive responsibility of caring for your grandchildren even while they are very young, and you are getting older. You’ve likely sacrificed a great deal to care for them and are now in a position where you are their day-to-day caregiver. It can be difficult for you to be in a situation where you are being asked to give up this position with your grandchildren when your child or their Co-parent reenters the picture. This can be especially true if you have learned things about their household that make it seem like your grandchildren are better off staying with you.
Of course, trying to maintain custody of your grandchildren on a legal level it’s probably not something that you would do if there didn’t seem to be anything wrong with their household environment at home. However, when that little voice inside you tells you not to immediately give custody back to the parents you are putting yourself in a difficult position. Legally, you cannot do what you are attempting until you file a petition in court and seek temporary conservatorships rights. As we have already established, grandparents do not normally have conservatorship rights to their grandchildren, and parents are presumed to be making the best decisions for their children when they want to deny access or possession to any other person.
There are other circumstances where you can file for custody or access to your grandchildren besides having the grandchildren voluntarily relinquished interior care. For example, if your child or their Co-parent has passed away then you may be able to sue for temporary or permanent conservatorship rights. Also, if Child Protective Services has placed your grandchildren with you due to a finding of abuse or neglect in their home then you may also be able to do the same. This is a straightforward situation given that your grandchildren’s home environment may not be found to be safe or conducive to raising children.
As with anything else, the specific circumstances of your case are incredibly important. I am giving you general overviews regarding situations where you can request possession or access to your grandchildren. However, trying to say anything definite regarding these circumstances is difficult. You would need to sit down with an experienced family law attorney to go over your specific scenarios and to determine whether you’ll stand a good chance of obtaining custody or visitation rights.
Having a calendar of times that you have been with your grandchildren, photographs detailing the nature of your relationship with your grandchildren or even bringing in an expert witness to testify to your situation in how it aligns with a strong grandparent to child bond can be essential to winning custody or visitation. Even bringing in witnesses from the community like teachers or parents of friends can go a long way towards helping you. The bottom line is that you’re caring for your grandchildren can provide stability and a consistent environment where your grandchild can attend school, become involved in the community, and generally lead a normal childhood life. Before you determine whether you want to move forward with a case like this you need to determine the strength of your case and what you need to do to prepare yourself and your family for the undertaking of this sort. That discussion begins and ends with a meeting with an experienced family law attorney here in the Houston area.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and in video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.