As we all know, divorces can be messy and affect more people than just the marriage and any children in the family. Sometimes it affects grandparents’ involvement in the life of the children. This often evidences itself one of two ways: wanting visitation rights, or maintaining partial rights over a child’s living situation and related decisions. If you are a grandparent facing this tough decision, then read on to see what course of action would be best for you.

As the parenting structures of today’s society become increasingly less traditional, the Texas legislature has made changes to better accommodate children and those who care for them. Perhaps the best example of this is reflected by the changes to how grandparents can achieve standing in suits regarding their grandchildren. Standing means a party’s capacity to bring a suit. Without it, you can’t even get a court to hear your case. As more and more parents become unable or unwilling to properly care for their children, grandparents need judicial standing to bring the necessary suits to gain conservatorship or access to their grandchildren now more than ever. Whether it is an original suit or a suit to modify an existing order, there are several ways a grandparent can gain standing. This article presents two important statutes regarding grandparent’s standing. Please note that these are not necessarily the statutes that determine the success of the case, but rather they are what allows the court to hear the case in the first place.

Section 102.003 of the Texas Family Code address the general standing for both an original suit for conservatorship and subsequent modification suits. Specifically, subsection (a)(9) of that statute states that a person who has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the petition has standing to bring the suit. While this language is broad in its applicability, it can be very helpful to a grandparent seeking conservatorship. If a parent has relinquished control of a child to a grandparent for a period of at least six months, that individual is automatically granted standing to file a suit seeking conservatorship. Note, however, that courts strictly define “actual care, control, and possession of the child.” If the parent is living in the home with the child and grandparent, or if the grandparent only exercises care, control, and possession during certain periods, the court will typically not grant standing under Section 102.003.

While Section 102.003 can be an effective statute for those who qualify, it may not be the right remedy for everyone. Many grandparents are not looking for a full conservatorship over a grandchild, but rather simply want a right to visitation. The Texas Legislature has provided standing for these people through Section 153.432 of the Texas Family Code. Under this section, a biological or adoptive grandparent may request possession of or access to a grandchild by filing an original suit or a suit to modify. They may do so regardless of whether conservatorship will be an issue in the case. A court will typically grant the possession or access requested by the grandparent if the grandparent can show that denial would significantly impair the child’s physical health or emotional well-being. Thus, under 153.432, a grandparent will always have standing for reasonable visitation or possession of their grandchildren.

In deciding which statute to seek standing through, the biggest question is what a grandparent wants out of a suit. If they seek rights generally regarded as those of a parent, such as the right to determine a child’s primary residency, or the right to consent to medical, educational, and religious decisions, then a suit for conservatorship under Section 102.003 is probably the best option. If they are simply seeking the right to spend a reasonable time visiting with their grandchildren, Section 153.432 typically proves an effective tool. By communicating with an experienced attorney to identify goals and formulate reasonable expectations, grandparents can better position themselves to make the most of their legal rights concerning their grandchildren.

Matthew McDonough

San Antonio Office

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