The Texas Family Code provides that grandparents may have rights to either custody or possession and access of children within very specific circumstances.
Visitation / Possession or Access (Texas Fam. Code § 153.432–433)
- Standing to file (§153.432):
A biological or adoptive grandparent may file either an original suit or a modification to request possession or access to a grandchild. - Affidavit requirement (§153.432(c)):
It is mandatory to submit an affidavit stating that denial of possession or access would significantly impair the child’s physical health or emotional well‑being. The court must dismiss the suit unless these facts would support relief under §153.433. - Conditions for court‑ordered access (§153.433):
The court may grant reasonable access only if:- At least one parent still has intact parental rights (i.e. not terminated).
- The grandparent overcomes the presumption that the parent acts in the child’s best interest, by proving denial would significantly impair the child’s well-being.
- The parent through whom you are related must be incarcerated (within past 3 months), incompetent, deceased, or lacking custody/access at time of filing
- Filing under §102.004:
If grandparents wish to obtain conservatorship, they may intervene in a custody case under Family Code §102.004. This requires proving that allowing the parents to remain in control would significantly impair the child’s physical health or emotional well‑being. - Alternative standing (§102.003):
A grandparent may also have standing if they had actual care, control, and possession of the child for at least six months ending not more than 90 days before filing. - Special case – both parents deceased or rights terminated:
Under §153.431, a grandparent may be appointed managing conservator if both parents are deceased or their rights were terminated, unless the child has been adopted by a non‑step‑parent.
Note: §153.434 prohibits grandparents from seeking visitation/access if the child was adopted by someone other than a stepparent.
Legal Presumptions & Key Judicial Precedents
- Troxel v. Granville (U.S. Supreme Court):
Establishes that courts must afford “special weight” to a fit parent’s decision regarding non-parent visitation rights. Courts may override only if there’s compelling evidence of harm to the child. - Texas case law (e.g., In re C.J.C., In re Derzapf):
Texas courts strongly favor the parental presumption unless grandparents present clear evidence that avoidance of access would significantly harm the child emotionally or physically.
Limitations & Timing
- When access is disallowed (§153.434):
If the child is adopted by someone not a stepparent, grandparents typically cannot seek access or visitation. - Deadlines:
For conservatorship under §102.006, grandparents often must file within 90 days of termination of a parent’s rights to maintain standing.
Evidence Needed & Practical Tips
- Proving harm:
Courts require current, tangible evidence of significant risk—medical or emotional reports, school records, witness testimony, or professional assessments. Future or speculative risk is not enough. - Demonstrating strong bond:
Evidence of a close, ongoing relationship—such as during a child’s six‑month residence with you—can support standing or suitability for conservatorship . - Legal counsel strongly advised:
These cases are complex and fact‑specific. Consulting a Texas family lawyer experienced with grandparent rights can help you meet filing requirements, deadlines, and build evidence-based arguments.
For a free legal consultation, feel free to call The Barrera Law Firm at 956-428-2822 for legal consultation with a licensed Texas Attorney.
