Can My Relatives Sue for Custody of My Children?

June 22nd, 2017 by Tad Nelson in Family Law

Most child custody disputes are between parents. But do other relatives have the right to seek custody if they feel that the parents are not capable of properly caring for their children? The answer in Texas is yes, with some important qualifications.

Texas law refers to child custody as a “managing conservatorship.” If two parents do not live together, they may be appointed as co-managing conservators. However, one parent is usually given the right to determine to child’s primary residence.

The Texas Family Code also allows a grandparent or another relative “within the third degree by consanguinity” to file a petition to be named managing conservator. But unless the child’s parents consent to such a petition, a relative only has standing if there is evidence that the child’s current living situation “would impair the child’s physical health or emotional development.” Furthermore, a relative can only modify an existing custody arrangement if the court agrees it is “in the child’s best interest” and there has been some material or substantial change in the children’s condition since the original conservatorship order was made.

Factors a Houston Court May Look at in Custody Cases

So what kind of things might a Texas court look at when deciding whether to consider a relative’s position for custody? Here is an example from a pending case before the Houston courts. Two parents, who were not living together, were named co-managing conservators of their two children. The children resided with the mother until she tragically passed away from cancer in 2015. Thereafter the father assumed primary responsibility for the children.

A few weeks after the mother’s death, the child’s maternal uncle filed a petition for managing conservatorship. The uncle alleged the father had failed to financially support his children in the past, had a criminal record, and refused to provide emotional counseling for the children following their mother’s death. The uncle also said the father restricted the children’s access to their mother’s family, with whom they previously had a close relationship.

A trial court dismissed the uncle’s petition for lack of standing. But the Texas First District Court of Appeals said that decision was premature. The appeals court noted that even though the father had been a co-managing conservator since 2012, the evidence indicated he “did not engage in any significant amount of the children’s day-to-day care” until 2015, just before the mother died. The court also pointed to the father’s failure to pay past child support obligations and his five criminal convictions as evidence the trial judge needed to reconsider.

Do You Need Help From a Houston Family Law Attorney?

This is not to suggest that a parent will automatically lose custody of their child because of unpaid child support or a criminal record. But it does illustrate the types of issues that can influence a court in making, or altering, a custody determination. This is why you need to work with an experienced Galveston child custody lawyer if you are involved in a conservatorship proceeding. Call the Law Offices of Tad Nelson & Associates today if you need help with a custody or family law matter.

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