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Do grandparents have custody rights?

Grandparents do not have a constitutional right to custody or visit their grandchildren following their parents' divorce or separation. However, Texas gives grandparents the right to seek these rights from a court in certain circumstances.

To prevail on a custody lawsuit, the grandparent has to prove that they lived with the child for at least six months. If the child resided with the grandparent for this time period but moved elsewhere, the move had to have occurred within 90 days of the lawsuit. They also have to prove that the court named them as the child's guardian, that the child is being hurt because of their current living conditions or that both of the parents, the court-appointed managing conservator or the custodian agreed that the child should reside with the grandparent.

The best interest of the child guides the courts and their custody decision is also based upon a parental presumption that parents are better at raising the children. The best interest of the child is based on the child's wants, their physical and emotional health, whether the child is in danger, the availability of public benefits, whether the parents or grandparents may skillfully raise the child, the home's stability and safety and whether a parent has a criminal record or failed to care for the child.

To overcome the parental presumption, a grandparent has to prove that the child will be hurt by living with the parents, the parents have a history of violence to their family or whether the parents voluntarily sent the child to live elsewhere for at least one year and within 90 days before the lawsuit was filed.

For visitation, grandparents have the difficult burden of proving that the parents are unfit or that the children are being hurt because there are no visits. Grandparents must also demonstrate that the child's parent did not have parental rights terminated, was imprisoned at least 3 months earlier, was found incompetent, is dead or does not have court-ordered access or possession of the child.

Seeking or objecting to grandparents' rights has to comply with legal requirements. Legal representation can help parties protect their rights in these family legal issues.

Source: TexasLawHelp.org, "Grandparents' rights," Accessed June 26, 2015

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