Divorce, or the separation of a couple who have children, is a painful process for all members of the family, not just for the mother and father but also for the children involved in the family relationship as well. In fact, if there are disputes over custody, the situation can be frightening and fraught with uncertainty. Unfortunately, one of the family groups that are often overlooked, and who can care for the children during this time, are the grandparents of the children involved. And under the U.S. Supreme Court case Troxel, grandparents havefew rights to ask for temporary custody or permanent custody of their grandchildren.
While it is best that the parents of the children work together amicably to resolve custody and visitation issues amongst themselves, this is not always the case and many times the children involved need the protection that only a grandparent can provide.
Under certain circumstances under the family code, there may be a way for grandparents to gain custody of the child(ren), if the child(ren) needs this protection. If your family is being affected by a custody battle or a custody dispute and you are a grandparent, it may be the right time for you to consult with a family law attorney who specializes in grandparent custody and grandparent custody rights.
Common Practices
As in most states, grandparent custody and grandparent rights are superseded by the custodial rights of each parent. If there is no custody order in place then those rights are equalfor each parent. And, if custody of the children is before the court, the court will generally believe that the best interests of the child(ren) will be better served by maximizing time spent with the child’s(ren’s) parents (either biological or adoptive). That being said, in cases where physical or emotional harm is being done to the child(ren) or is suspected, grandparents may have legal rights to seek custody of the child(ren).
Filing for Custody of Children
The Family Code allows three separate venues for grandparents who are seeking custody of their grandchildren:
- General Standing: This is most often used for grandparents who have had actual physical custody of the child(ren) in question for at least six months. The rules of this stipulation are narrowly defined and it is advisable to consult with a custody attorney or family law lawyer who specializes in custody, early in the petitioning process.
- Significant Impairment: This statute pertains to grandparents who do not have ongoing physical custody of their grandchild(ren) but believe that the current conditions of a grandchild or their grandchildren is detrimental to the overall development of the child(ren). Under this provision, you must be able to prove that both parents (either biological or adoptive) are unfit to raise the child(ren).
- Possession and Access: This provision can be used to allow for visitation by the grandparents. Unfortunately, the requirements of this statute may be difficult to meet as there must be proof that denial of visitation would be detrimental to the grandchild(ren).
If you are seeking to resolve questions as to whether or not you as a grandparent can seek custody of your grandchildren in Texas or Arizona, and to make life more favorable for your grandchild(ren), please contact a qualified custody attorney to maximize your legal rights.
The attorneys at Goldstein & Scopellite, PC, handle all custody matters including grandparents seeking custody.
Goldstein & Scopellite, PC, which was established in the year 2002, has offices located in Dallas, Texas and Tucson, Arizona and they serve the surrounding communities. For more information, please see the Goldstein & Scopellite, PC listing in D Magazine.
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