In Texas, grandparents have legal rights to ask for custody of their grandchildren under certain circumstances. In this article, we’ll discuss the Texas Family Code section that outlines these circumstances and what you need to know about them.
Section 102.004 of the Texas Family Code
Section 102.004 of the Texas Family Code is the statute that outlines when a grandparent has standing to ask for custody of a grandchild. The statute states that a grandparent may file an suit affecting the parent-child relationship, which includes a suit for custody of a child, if certain conditions are met.
Conditions for Grandparent Custody
According to Section 102.004, a grandparent may have standing to file a suit for custody of a grandchild if any of the following conditions are met:
1. Serious Question Concerning Child’s Physical Health or Welfare
The first condition is that the grandchild’s current living situation presents a serious question concerning the child’s physical health or welfare. This could include situations where the child is being neglected or abused, or where the child’s living situation is causing harm to their physical or emotional well-being.
For example, if the child’s parents are struggling with addiction and the child is not being properly cared for, a grandparent could argue that the child’s physical health and welfare are at risk and seek custody.
2. Grandchild Living with Grandparent for At Least Six Months
The second condition is that the grandchild has been living with the grandparent for at least six months, and the grandparent can show that granting custody to the grandparent would be in the child’s best interest. This condition is often referred to as “de facto” custody, meaning that the grandparent has been providing for the child’s needs and acting as a primary caregiver.
For example, if the child’s parents are going through a difficult divorce and the grandparent has been taking care of the child during this time, the grandparent could argue that they have been providing the child with a stable and loving home and that it would be in the child’s best interest to remain with them.
3. Parent of Parent Incarcerated, Incompetent, Deceased, or Rights Terminated
The third condition is that the grandparent is the parent of a parent of the child, and that parent has been incarcerated, found incompetent, died, or had their parental rights terminated. This condition recognizes the important role that grandparents can play in a child’s life when one or both parents are unable to provide adequate care.
For example, if the child’s parent has passed away and the other parent is unable to care for the child due to mental illness, the grandparent could argue that they should have custody in order to provide the child with a stable and loving home.
Best Interests of the Child
It’s important to note that even if a grandparent meets one of the above conditions, the court will still consider what is in the child’s best interest when deciding whether to award custody to the grandparent. This means that the court will take into account a variety of factors, such as the child’s relationship with their parents, their academic and social needs, and the grandparent’s ability to provide a stable and loving home.
Level of difficulty
Grandparents should understand that it is very difficult to get custody of a grandchild.
There are 2 hurdles that must be overcome: 1. You must show the court that you have the right to ask for custody under one of the grounds in Section 102 o the Texas Family Code and 2. That it is in the best interest of the child that you get custody.
Therefore, you must make sure that you have demonstrable evidence to support your claims.
Grandparents in Texas have legal rights to seek custody of their grandchildren under certain circumstances. If you are a grandparent and are considering filing a suit for custody, it’s important to consult with an experienced family law attorney who can help you understand your legal rights and the best course of action for your specific situation
To discuss retaining our firm for your divorce or child custody case, please schedule a consultation with us today.