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Grandparents Rights

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:

Sec. 102.004

(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.

But wait....

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.

Grandparents rights. What you don't know can hurt you.

Family Law Blog

Family Law and You

If you are considering a divorce or if you are contemplating separating from your current partner and have never been married, there are many issues that need to be considered. During the next several weeks, I will post my thoughts and opinions on some of the issues I believe, as a family law attorney, that you should recognize and give serious thought.

When you are talking about a petition for divorce or a suit affecting the parent-child relationship and there are one or more children involved, it is important to know who can file an original lawsuit. The Texas Family Code is relatively clear on this topic. Under section 102.003 GENERAL STANDING TO FILE SUIT, the code states:

(a) an original suit may be filed at any time by;

(1) a parent of the child; (2) the child through a representative authorized by the court; (3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country; (4) a guardian of the person or of the estate of the child; (5) a governmental entity; (6) an authorized agency; (7) a l licensed child placing agency; (8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise; (9) a person, other than a foster parent, who has had actual care, control and possession of the child for at least six months ending not more thant 90 days preceding the date of the filing of the petition; (10) a person designated as the managing conservator in a revoked or un-revoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162; (11) a person with whom the child and the child's guardian, managing conservator or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition; (12) a person who is the foster parent of a child placed by the Department of Protective and Regulatory Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition; (13) a person who is a relative of the child within the third degree by consanguinity, as determined by chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition; or (14) a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Section 102.0035, regardless of whether the child has been born.

(b) In computing the time necessary for standing under Subsections (a) (9), (11) and (12), the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit.

(c) Notwithstanding the time requirements of Subsection (a) (12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child. The standing to file suit under this subsection applies only to the adoption of a child who is eligible to be adopted.

The Code may provide for different or extended requirements for standing for an original petition filed by grandparents, a sibling or for a suit seeking termination and adoption. Case law may also play a part when considering who is eligible to file a lawsuit involving children.

If you have concerns about whether or not a party has a right to file a lawsuit under the Texas Family Code you should contact an attorney. If you are a grandparent of a child and anticipate any legal issues regarding your right of visitation and/or access to your grandchild, time can be of the essence and what you do not know, can hurt you.

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