What legal rights do grandparents have in Texas?

Grandparents have limited legal rights in Texas. Grandparents may request visitation rights if their child passes away or loses effective custody of their child (the grandchild). A court will only grant such a request if the grandparent not having those rights would significantly impair the child’s health and well-being. Grandparents may also gain custody of their grandchildren if the parents sign an agreement transferring those rights. Absent parental consent, a grandparent may typically only gain custody after the parents lose it.

How hard is it for grandparents to get custody in Texas?

How hard it is for grandparents to get custody varies by the circumstances. Getting custody may be relatively easy if the parents drop off the grandchild with the grandparents and never look back. But if one or both parents oppose the grandparents having custody, the process may be quite difficult.

Can a parent give guardianship to a grandparent in Texas?

Yes, a parent may relinquish custody to a grandparent in Texas. They may use an affidavit relinquishing parental rights to do so. A court must approve the affidavit before it becomes effective. The court will only approve the transfer if it is in the child’s best interests.

Grandparent's Rights in Texas

What's Inside

Bottom line

Nationwide, approximately 7.1 million grandparents live in households with their grandchildren. Of that 7.1 million, approximately 2.3 million are responsible for providing care to their grandchildren. Grandparents end up caring for their grandchildren in many ways, often when a parent is unable or unwilling. Faced with the choice between allowing their grandchildren to enter foster care or taking the children in, many grandparents step up.

Here, we explore the ins and outs of grandparents’ rights in Texas related to the custody and care of their grandchildren. We address when grandparents have custody or visitation rights and how they may pursue those rights.

Key Takeaways:

A grandparent must have standing before a court will consider an action regarding conservatorship rights.
Grandparents have limited rights to custody and visitation of their grandchildren.
Courts typically favor a parent over a grandparent unless a parent actively mistreats the child.
To get visitation rights, a grandparent must convince a court that the grandparent not having access to the child significantly impairs the child’s physical or emotional well-being.
For a grandparent to get custody, the parents typically must agree or first lose their parental rights.

Texas law establishes one primary consideration for determining custody of a child: the child’s best interests. Absent contrary evidence, the law assumes living with their parents is in children’s best interests.

By default, grandparents don’t have any legal rights to their grandchildren. They’re not entitled to visitation or custody. Yet grandparents may request access to or time with their grandchildren in certain circumstances and custody of their grandchildren in others.

Grandparents’ visitation rights in Texas

In Texas, grandparents may request a court grant them possession of or access to a grandchild—visitation rights—if:

More likely than not, denying those rights would “significantly impair” the child’s physical and mental health
At least one biological or adoptive parent retains parental rights to the child
The grandparent’s child—the minor child’s parent—is incarcerated, a court has declared them incompetent, they’re dead or they don’t have custody or visitation rights

However, grandparents may not request visitation rights if someone other than the child’s stepparent has adopted or is in the process of adopting them and any of the following are true:

Both parents have died
Both parents have lost their parental rights
Each parent has relinquished their parental rights to a child placement agency or someone other than the child’s stepparent

So, a grandparent may request visitation rights only if their child (the grandchild’s parent) doesn’t effectively have custody or visitation rights, but the child’s other parent or stepparent does.

Pro tip:

Convincing a judge that denying grandparent visitation is likely to significantly impair the child’s physical and emotional well-being typically comes down to the specific facts in the case. If you bring a claim, you’ll want to explain in concrete and specific terms how you have provided for the child and what they’ll miss out on if you don’t continue.

Grandparents’ custody rights in Texas

A court may order that someone other than a parent take custody of a child if:

Both parents die
The state removes the child from their parent’s care due to abuse or neglect
Both parents lose their parental rights
The parent with parental rights relinquishes those rights to someone else

Courts typically favor placing children with relatives when possible in the above circumstances.

Parental death

Texas law directs that a court deciding whom to appoint to care for a minor child after their parents die should consider the child’s grandparents, aunts and uncles for placement. Where the child ends up depends on who’s willing to take them in and the quality of care they may receive.

DFPS involvement

When the Texas Department of Family and Protective Services (DFPS) receives a report that a child is being abused or neglected, it must investigate. If it concludes abuse or neglect occurred, it may remove the child from the parents’ care to protect the child from further harm.

Except in the most egregious cases, parents usually have a chance to regain custody of their children by following a DFPS-created plan.

In the meantime, the child needs care. When DFPS removes children from their homes, it typically places the child with a relative while the parents work to regain custody. Often, that means placement with a grandparent.

Initially, custody over a child because of DFPS involvement is temporary. However, if the parent or parents don’t regain custody of the child, you may make it permanent.

Loss of parental rights

If it’s in the child’s best interests after DFPS investigates reports of child abuse or neglect and gives the parents a chance to regain custody, the state may request the court terminate their parental rights. If it does, it notifies known relatives about the termination.

A parent may also request termination of parental rights—their own or the other parent’s.

If every living parent loses their parental rights, the law limits when and which of the parents’ relatives may request custody. Only the following relatives may request custody, and only if they do so within 90 days of the last parent losing their parental rights:

An adult sibling of the child
A grandparent
An aunt
An uncle

For the court to place the child in your custody, you must convince them that you having custody is in the child’s best interests.

Relinquishment of custody or parental rights

Parents may surrender their parental rights willingly through an affidavit for voluntary relinquishment of parental rights. In the affidavit, the parent may designate someone else they want to have custody.

Either parent may complete a voluntary relinquishment, which must be:

Signed 48 hours or more after the child’s birth
Witnessed by two credible individuals
Verified by someone authorized to take oaths

The affidavit must contain information about each parent and the child and verify that the parent doesn’t currently owe child support.

The parent may relinquish their rights:

Revocably
Irrevocably
Irrevocably for a set time

Parents may also consent to a nonparent being granted sole custody of their child or otherwise be ordered to share custody with a nonparent.

Regardless of which avenue a parent pursues to relinquish rights, they must obtain court approval. To make the relinquishment effective, a court must conclude the change is in the child’s best interests.

Pro tip:

The most reliable way to ensure you’re able to see your grandchild regularly is to maintain a positive or at least cooperative relationship with the child’s parents. Filing a lawsuit to contest visitation or custody may do more harm than good if you haven’t tried to work things out outside the courtroom first.

How to get grandparents’ rights in Texas

Generally, a grandparent requests custody or visitation rights through a suit affecting the parent-child relationship (SAPCR). If the parents already have an SAPCR case, the grandparent may request a modification to an existing custody order. Otherwise, the grandparents file a new SAPCR suit.

Request visitation

When you request visitation rights to your grandchild, you provide an affidavit explaining why it would significantly impair the child’s well-being if your request is denied. This affidavit should be detailed and specific.

If the parent with custody opposes your request, you may need to present evidence before a judge at a court hearing. If they don’t, you may reach an agreement outside of court. To make that agreement legally binding, request the court issue an order covering its terms.

Request custody

A grandparent may request temporary or permanent custody of a child in several ways, depending on the situation:

Ask DFPS to place the child into your custody after they’re removed from their parents’ care
Request custody of the child after the parents die or lose their parental rights
Have a parent relinquish their parental rights to you
Have a parent agree to share custody with you

In most circumstances, you ask for custody by filing a custody modification request.

Pro tip:

The courts presume an ongoing relationship with both parents is in the child’s best interests. For a court to grant you custody in exclusion of a parent who wants to keep custody, you’ll need to present compelling reasons that remaining in the parent’s custody would significantly impair the child’s health and well-being.

Grandparents’ and visitation rights

Grandparents have limited visitation and custody rights in Texas. Usually, for a grandparent to be awarded legal rights, the child’s parents must first lose custody. If you want to pursue legal rights to a grandchild, consider hiring a family lawyer.

Unless the child’s parents are completely on board, you likely face a messy battle that could divide the family. With a lawyer, you may minimize the personal toll of a case by communicating through your lawyer and lowering the risk of creating irreconcilable rifts in your family. Your lawyer will also help you gather evidence that your having legal rights is in the child’s best interests and you not seeing them harms the child. Then, your lawyer frames and presents that evidence to fit it into the legal requirements to establish grandparents’s rights in Texas as well as possible.

Sources

https://www.aarp.org/home-family/friends-family/info-2023/grandparents-become-parents-again.html

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.002

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.001

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.432

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.433

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.434

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.153.htm#153.431

https://www.dfps.texas.gov/

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.161.htm#161.208

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.161.htm#161.2081

https://statutes.capitol.texas.gov/Docs/FA/htm/FA.161.htm#161.103