Conservatorship Part II – What About the Grandparents?

Family Law Attorney for Grandparents Rights Brian McNamara Kingwood TX

Conservatorship Part II – What About the Grandparents?

Many loving and involved grandparents want to know what rights they may have when it comes to their grandchildren. Oftentimes, grandparents are the ones helping to raise grandchildren while their son or daughter is in a time of transition or involved in activities that may put the grandchildren at risk. In other cases, a grandparent may simply want to know if they have any legal rights of visitation with their grandchildren.

Seeking Conservatorship

The State of Texas favors a policy that keeps nuclear families in tact when possible. Generally, the law won’t even allow a grandparent to petition the court for conservatorship unless:

  1. They have “had actual care, control, and possession of the child for at least six months ending mot more than 90 days preceding the date of the filing of the petition” (Tex. Fam. Code §102.003 (a)(9)); or
  2. “There is satisfactory proof” that it is “necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.” (Tex. Fam. Code §102.004 (a)(1)).

What does it mean to have “Care, Control, and Possession” of a child?

Until recently, the Texas Courts of Appeals were split on the definition of “actual care, control, and possession.” Some courts interpreted the statute to mean that the person seeking conservatorship must have some sort of legal control or custody over the child, while other courts did not impose a legal requirement to the term and found simply having actual possession of the child and day to day involvement in their lives sufficient. The Texas Supreme Court resolved the debate to find that legal control or custody of the child was not required to petition the court for conservatorship. The court held that:

“a nonparent has ‘actual care, control, and possession of the child’ …if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their child.” In the Interest of H.S., A Minor Child, 61 Tex. Sup. Ct. J. 1462, 2018 WL 2993873, 7 (Jan. 10, 2018).

The court went on to state that the nonparent’s care of the child need not be exclusive, meaning that the parent of the child need not have completely relinquished his or her parental rights over to the nonparent.

Impairment of Physical Health or Emotional Development

The second way to seek conservatorship as a grandparent is if your grandchildren’s well-being is at risk. This is a heavy burden and it is more than just a showing that the non-parent may be a better custodian or may provide a better life or more opportunities for the child. The Fort Worth Court of Appeals has held that “some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions of the parent, will probably cause…harm” and that “close calls should be decided in favor of the parent.” Critz v. Critz, 297 S.W.3d 464, 474-475 (Tex. App. – Fort Worth 2009, no pet.). Additionally, the court held that “past misconduct is not alone sufficient to show present unfitness.” Critz at 475.

You Are Qualified to File a Petition for Conservatorship – Now What?

Once a nonparent has passed the first legal hurdle and has qualified to file a petition seeking conservatorship, additional qualifications must be met in order to prevail in the action. The courts do not favor turning legal custody over to a nonparent without good cause. In Texas, there is a strong presumption which favors the parent as the child’s conservator. To overcome the parental presumption, the non-parent must show:

  1. The appointment of a parent as conservator would “significantly impair the child’s physical health or emotional development.” Tex. Fam. Code §153.131 (a); or
  2. That the parent “voluntarily relinquished actual care, control, and possession of the child…for a period of one year or more.” Tex. Fam. Code §153.373(1).

In addition to the “significant impairment” test, a nonparent conservator can overcome the parental presumption if the parent has voluntarily relinquished care, control, and possession of the child for one year or more. That one-year period must have taken place within the 90 days prior to filing the petition for conservatorship and the court must find that appointing a nonparent as a conservator is in the best interest of the child. In some cases, the court may appoint a nonparent as a conservator jointly with one or both of the parents, with the nonparent given the exclusive right to determine the primary residence of the child. In re S.A.H., 420 S.W. 3d 911 (Tex. App. – Houston [14th Dist.] 2014, no pet.).

In Texas it is not unusual for a grandparent or other nonparent to prevail in seeking conservatorship of their grandchildren when the parents’ conduct presents a danger to the children or the parents have voluntarily relinquished the children. Oftentimes, when a family situation gets to the point where the grandparent is seeking conservatorship of the grandchild, these statutory factors are easily discernable.

What if I Just Want to See My Grandkids More Often?

The Texas Family Code allows grandparents to petition the court for “possession of, or access to a grandchild”, or what many people think of as visitation. Tex. Fam. Code §153.433. This statute often applies if the grandparent is the parent of a parent of the child who is incarcerated or has passed away, and the other parent is limiting or has taken away completely the grandparents time with the grandchildren.

Although Texas law allows a grandparent to seek visitation, the United States Supreme Court has made it very difficult to prevail in this type of lawsuit. In Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L.Ed.2d. 49 (2000), the Troxels petitioned a Washington court for visitation with their grandchildren after the children’s father passed away. The Washington statue stated that any person may petition the court for visitation at any time and the court may grant such visitation if it’s in the best interest of the children. The United States Supreme Court found this statute to be unconstitutional and a violation of the mother’s due process rights. The court stated that “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” Troxel at 68-69.

After the United States Supreme Court ruling, the grandparent must overcome the “presumption that a parent acts in the best interest of the parent’s child.” Tex. Fam. Code §153.433.