Child custody cases are usually between parents. However, sometimes a parent dies or goes to prison or has big problems with drugs, alcohol, or mental illness. A grandparent or a non-parent (such as an adult sibling or aunt or uncle or long-time caregiver) can sometimes seek custody of a child in unusual circumstances. However, every two years the Texas legislature seems to make it harder for grandparents and non-parents to seek custody. The law strongly favors parents in custody cases.
Generally, a non-parent has the ability to ask for custody if the child has lived with and been parented by the non-parent for more than six months or if the child’s current circumstances endanger the child. For example, a grandparent would have the ability to file a case for custody if they have been caring for the child for a year while one parent is in prison and the other parent has been off doing drugs. Likewise, a grandparent of a child whose parents were just arrested for abusing the child could also file a custody case.
“Standing” is the legal right to file a lawsuit. A grandparent or non-parent has standing to file a custody case if the person is a relative and the child’s parents are deceased. A grandparent or non-parent can also have standing if the person has “has had exclusive care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.” Tex. Family Code Sec. 102.003(a)(9).
A grandparent or non-parent who files a custody petition (or intervenes in an existing custody case) must file an affidavit with the court that “(1) attests, based on the nonparent's personal knowledge or representations made to the nonparent by a person with personal knowledge of the matter, that denying the relief sought would significantly impair the child's physical health or emotional development; and (2) contains facts that support the allegation under Subdivision (1).” Tex. Family Code Sec. 102.0031(a).
As a practical matter, it is almost impossible for a grandparent to sue for just visitation. If the situation is bad enough, the grandparent should sue and ask for custody, not visitation.
It is hard for a grandparent or non-parent to win a custody case unless the parents do not show up to court or they agree to the court order. Grandparents should carefully decide whether it is wise to even file a case because if they lose, the parent may totally cut them off from their grandchild.
The legal issues involved in a non-parent custody case are many and complex and a lawyer who is experienced with these intricacies is necessary to navigate such a case. The law favors parents, and so it must be an extreme case that fits within certain narrow criteria before a grandparent or other non-parent has a chance to fight for custody of a child.
Attorney Greg Enos has handled many grandparent cases and he has written about the topic and taught legal seminars on the subject.