Texas grandparent custody in matters involving child abuse and neglect

When do grandparents have standing to seek custody of minor children? Read about one grandmother’s award of sole (custody) managing conservatorship. The court commented on the legal arguments regarding the issue of whether grandmother qualified for legal standing under the Texas Family Code provision on which she based her lawsuit.

When mom and dad are found to abused or neglected to protect their children, grandmother may step in and seek sole custody, in certain situations. In Texas, a person must have "standing" to cause a lawsuit against another, and this a requirement in the Texas Constitution. Standing requires the individual demonstrate particular harm that could occur without the intervention of a court. Where the cause would be an action affecting children or a parent-child relationship, the Texas Family Code identifies the requirements of an individual to have standing to sue. While the complex list of standing options in the Family Code does not specifically identify standing for grandparents, they may bring suit under one of the standing provisions. A grandparent's standing was the subject of a recent appeal and the 14 th District Court of Appeals in Houston affirmed the grandmother's standing and trial court decision granting her sole managing conservatorship (custody) over her grandchildren.

When do grandparents have standing to seek custody of minor children?

There are several provisions in the Texas Family Code through which a grandparent can assert standing to file a lawsuit affecting a parent-child relationship. There is a list of 14 different provisional choices in the code to assert standing to sue including being a parent, a child with a representative, an appointed custodian, a governmental agency or official, a man alleging to be a father, a legal guardian, a relative, or by specific example in this case, "(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition." (the grandmother claimed standing and won under this provision ).

In the trial court, the standing of the grandmother was never raised as an issue, and the appellate court assumes the trial court conferred standing upon the grandmother. The trial court reviewed the evidence including testimony of the parties, their adult children, and others including representatives from the Texas Department of Family Protective Services.

The facts and evidence leading to the grandmother's award of sole (custody) managing conservatorship.

Prior to the original lawsuit, mother, father, and their nine children lived in the maternal grandmother's house and grandmother and her husband lived in an adjacent mother-in-law suite. The extended family all lived together for 21 years until there was a family dispute in 2011 in which the father told his wife's mother that she had to leave the property and not return; grandmother left with all but two of the minor children and filed a lawsuit seeking sole managing conservatorship and possession and access of the children.

Based on grandmother's sworn statements and petitions with the court, Child Protective Services (CPS) conducted visits with the parents, children and grandmother and the investigation caused a CPS Safety Plan which prohibited the father from having any access or visitation with his children. The evidence at trial demonstrated abuse and neglect to protect the children from their father, as their mother failed to take appropriate steps to stop and prevent further abuse. The trial court granted the grandmother's petition and awarded her sole managing conservatorship and possession and access. The mother negotiated supervised visitation and access though an approved third party program. The father remained prohibited from seeing the children, as the court found it was contrary to their best interests and development.

The court commentary on the legal arguments regarding the issue of whether grandmother qualified for legal standing under the Texas Family Code provision on which she based her lawsuit:

Grandmother asserts her right to sue based on Texas Family Code Section 102.003(a)(9):

"An original suit may be filed at any time by . . . a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. "

The Appellate Court found that grandmother satisfied the requirements for standing to sue under Texas Family Code Section 102.003(a)(9), "by having actual care, control, and possession of the children for six months ending not more than 90 days preceding the date the petition was filed. " Over the appeal and objection by mother and father, the court further concluded, "section 102.003(a)(9) does not require the person asserting standing to demonstrate exclusive control of the child."

The court found that the grandmother correctly asserted standing for her original suit for sole (custody) possession and access even despite the fact that children lived in the home with the grandmother as well as the parents, nor the grandmother not otherwise having legal control over the children, nor the parents not voluntarily relinquish their legal rights to the children.

Dallas, Denton and Collin County Board Certified divorce and family law attorney, Mark Scroggins, along with their team at Scroggins Family Law represent clients in a variety of family law matters, including grandparent custody and visitation causes.

At Scroggins Family Law, our Dallas, Denton and Collin County divorce attorneys have more than over 20 years of collective experience with family law cases. When you retain our firm, you can trust that your case is in the hands of a highly skilled, dedicated professional. we understand the unique challenges of a high value divorce case, and more importantly, have the knowledge and experience you need on your side. Call us today, (214) 469-3100, to learn more about Texas divorce and family law.

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See generally, In The Interest of K.S., K.S., and C.S., Children, No. 14-15-00008-CV, in the 14 th Court of Appeals, On Appeal from the 309 th District Court in Harris County, Texas (Ct. App. 2016)

Texas Department of Family Protective Services is the agency under which Child Protective Services operates.

Texas Family Code Section 102.003(a)(9), General Standing to File Suit

In re K.S. at page 8.

Texas Board of Legal Specialization, Why Choose Board Certified?

Keywords: When do grandparents have standing to seek custody of minor children? Read about one grandmother’s award of sole (custody) managing conservatorship. The court commented on the legal arguments regarding the issue of whether grandmother qualified for legal standing under the Texas Family Code provision on which she based her lawsuit.