GRANDPARENTS SEEKING CUSTODY OF THEIR GRANDCHILDREN

Since the United States Supreme Court’s Troxel decision, the rights of grandparents seeking custody over their grandchildren has been curtailed. In shorthand, the Supreme Court in Troxel stated that a grandparent does not have a per se right to seek custody of a grandchild merely because they are kin to the child; there must be more than a simple familial relationship.

In reaction to the Troxel decision, the Texas legislature enacted statues designed to provide standing (which is the right to seek custody) to grandparents in certain, limited scenarios. For example, when a parent consents, then a grandparent may sue to seek custody over their grandchild. Moreover, if a grandparent has had both substantial and recent contact with a grandchild, then the grandparent may also seek to be appointed as a conservator over that grandchild. This scenario is where the Texas Supreme Court has issued a 2018 opinion.

In the case of In re H.S, the Texas Supreme Court reviewed a case wherein the grandparents had exercised possession and care over their grandchild for a substantial length of time, but such possession and care was also in conjunction with the child’s own biological parents. Subsequently, the grandparents sought to obtain primary custody over their grandchild, but against the wishes of the parents. The trial court dismissed the grandparents’ lawsuit stating that Texas’s “standing” statute requires that the grandparents have “actual care, control, and possession of the child for at least six months.” While the grandparents met the six-month requirement for possession, the trial court held that the word “actual,” used in the statute before the words care, control, implied that the grandparents must have had “legal” care and control over their grandchild (with an emphasis on the “control” element). In short, the question was: “Were the grandparents required to have legal right of care and control over their grandchild before suing for possession?” Wisely, the Texas Supreme Court said “No.” Noting that the legislature did not define the word “actual,” the Court held that we need look at the ordinary meaning of the term, “actual.” Therefore, according to the dictionary, the Texas Supreme Court found that the term “actual” meant only “exiting in fact, real.” That is, does the care and control over the child exercised by the grandparents rise to the level of loco parentis, or “a parent-in-fact?” While not deciding on the merits of who should get possession itself, the Texas Supreme Court held that a grandparent who has acted as a parent-in-fact, making decisions, providing basics needs, assuming parental responsibilities, did qualify as persons who had “actual care, control, and possession” over a child sufficient to bring a custody lawsuit.

LESSON: Inside or outside of divorce proceedings: If you are a grandparent, being related to your grandchild is not sufficient in most cases (absent endangerment to your grandchild) to bring suit against the wishes of your own child. You must have more. Fortunately, that “more” requires that you act as a parent for the child and do so for a period of at least six months.