Can Grandparents Seek Custody in Texas?

In Texas, the law uses the term “conservatorship” instead of child custody to describe a parent or legal guardian’s relationship with a child. If both of a child’s natural parents are living, they are normally presumed to be “joint managing conservators” of the child. A “managing” conservator simply means they are the person who is responsible for making major decisions regarding the child’s care, such as where they will live and attend school. In some cases, a court will decide that just one parent should serve as the “sole managing conservator” and thus have the exclusive right to make these decisions for the child.

But what about someone who is not a parent? For example, could a grandparent seek to be named as a sole or joint managing conservator over the objection of a parent? The short answer is yes, it is possible. But the longer answer is that it gets complicated. Texas law starts with a presumption that a parent is fit and has the right to raise their own child. This presumption can be overcome, but how to do so depends on a number of factors.

The Constitutional Presumption of Parental Fitness in Texas

A recent decision from the Texas Eighth District Court of Appeals in El Paso, In the Interest of R.W.N.R., helps to illustrate the complexity of this subject. This case involved a custody dispute between the mother and grandmother of a now-11-year-old child. The child was born in 2012. At the time, the mother and father were married.

At the end of 2013, however, the parents divorced, although the final divorce decree was later set aside by the court. Nevertheless, the mother decided to pursue other relationships and left the child in the father’s care. But she also continued to intermittently live with the father and the child for the next five years or so. The grandmother lived next door to the father and had daily contact with the child.

In 2018, a social worker started counseling the child, who was diagnosed with a generalized anxiety disorder that caused him to avoid eating. This disorder was apparently triggered by the mother’s irregular presence and the father then facing criminal charges. Unfortunately, those charges led to the father’s incarceration. After he went to jail, the child went to live with the grandmother.

In 2020, the mother filed for divorce from the father. The grandmother intervened, seeking to be named managing conservator of the child. The court decided to temporarily appoint the mother and grandmother as joint managing conservators, but gave the grandmother the authority to decide where the child would live and make other critical decisions. The mother was only allowed supervised visitation with the child.

Following a trial, the court permanently named the mother and grandmother as joint managing conservators. But once again, the grandmother would exercise primary decision-making rights for the child, although the mother was permitted unsupervised visitation once again. The mother appealed to the Eighth District, arguing the judge’s decision violated her constitutional and statutory rights as the child’s parent.

The Eighth District agreed. The appellate court explained that under binding U.S. Supreme Court precedent, a parent has “a fundamental right to the care, custody, and control of their children.” Among other things, this means that as long as a parent “adequately cares” for their child, the state should not normally question their ability to act in a child’s best interest. The Texas Supreme Court has subsequently held that when a non-parent requests to be named a child’s managing conservator “in addition to or in lieu of a natural parent,” the presumption that the parent will act in the child’s best interest still applies.

And while the presumption of a parent’s fitness can be overcome, the Eighth District observed that Texas courts “have been unable to articulate the degree or quantum of evidence required to overcome the fit-parent presumption.” In this particular case, however, the appeals court was satisfied that the presumption was not overcome. The grandmother pointed to mother’s lack of a stable employment or home–she was living with relatives–as proof of her unfitness. But all that proved, the Court said, was that the mother was like many single parents who require assistance in their daily lives. And while uprooting the child from his current living arrangements with the grandmother may be stressful and even exacerbate his anxiety disorder, that was insufficient proof he would suffer a “significant harm” to justify overcoming the mother’s right to raise the child.

Contact a League City Child Custody & Visitation Lawyer Today

Every parent strives to do right by their child. In trying to do what is right, however, legal conflicts may inevitably arise with the other parent or even other family members who have different views on what is best for the child. If you are involved in such a dispute and need legal advice or representation from a qualified Galveston family law attorney, contact the Law Offices of Tad Nelson & Associates today to schedule a consultation.