If you have read my previous post regarding filing an original lawsuit, you may have concluded that unless you are the birth parents of the child or children involved in your case, it is difficult and can be near impossible to meet the test required under the Texas Family Code.
Once you have cleared the hurdles under section 102.003 you are only half way there, at best.
Section 102.004 STANDING FOR GRANDPARENT OR OTHER PERSON. This can be, and often is, the final nail in the coffin for the grandparent who is trying to get possession and access to their grand-child. The section states as follows:
(a) IN ADDITION to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1) the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional developement; or
(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
Let's say you are the grandparents of a child and you are able to prove to the court that the child has been living with you for the past three years without any assistance or input by the biological parents. You have met the requirement under Sec. 102.003 (9) to bring an original suit.
Wait..... don't start preparing that lawsuit just yet. You now have to meet the additional requirements found in Sec. 102.004 listed above.
If you are once again able to prove to the court either Sec. 102.004 (a)(1) or (a)(2) then you may move on.
Section 102.004 (b) states that an original suit requesting possessory conservatorhsip may not be filed by a grandparent or other person. (PERIOD, emphasized) However, the court may grant a grandparent, or other person deemed by the court to have had substantial past contact with the child, leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
(c) Possession of or access to a child by a grandparent is goverened by the standards established by Chapter 153.........and that is a whole different ballgame.