In Texas, if both parents of a child are deceased, the court may use its discretion to appoint a biological or adoptive grandparent of the child as the managing conservator (i.e., the grandparent would have legal and physical custody of the child).

Where a grandparent seeks reasonable possession of or access to a grandchild, the grandparent may file a "suit affecting the parent-child relationship" ("SAPCR") alleging that denial of possession of or access to the child "significantly impairs" the child's physical health or emotional well-being. The grandparent must attach an affidavit of supporting facts to the SAPCR petition. Unless the court finds that the facts stated in the affidavit meets the "significantly impairs" standard, the court must dismiss the grandparent's petition.

The court may order possession or access to the grandparent if:

(1) at the time the petition is filed, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated;

(2) the grandparent requesting possession or access overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession or access would significantly impair the child’s physical health or emotional well-being; and

(3) the grandparent requesting possession or access is a parent of a parent of the child and that parent of the child:

(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;

(B) has been found by a court to be incompetent;

(C) is dead; or

(D) does not have actual or court-ordered possession of or access to the child.

A court that grants access to a grandparent who does not meet this standard abuses its discretion and would very likely have its judgment overturned by the appellate court. The Texas Legislature set such a high standard for grandparent access because the law presumes that a fit parent acts in the best interest of her child. Ultimately, parents have a constitutional right to make decisions concerning the care, custody, and control of their children–but this right is not absolute. However, grandparents do not have a constitutional right to visitation with or custody of their grandchildren.

It must be noted that a biological or adoptive grandparent may not request possession of or access to a grandchild if:

(1) each of the biological parents of the grandchild has:

(A) died;

(B) had the person’s parental rights terminated; or

(C) executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights and the affidavit designates the Department of Family and Protective Services, a licensed child-placing agency, or a person other than the child’s stepparent as the managing conservator of the child; and

(2) the grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child’s stepparent.

If you have questions about the custody and visitation rights of grandparents in Texas, please schedule a consultation today. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the Firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.