Sometimes the welfare of the child is at stake and a grandparent wants to step in to take responsibility for the grandchild. What can a grandparent do?
Lawsuit for custody of the grandchild.
This is a very serious proceeding and the law in Texas restricts who can file a lawsuit for custody of a child. For grandparents we can look at Texas Family Code §102.003(a)(9). The grandparent must have actual care, control, and possession of the child. Over the years, courts have ruled what "actual care, control, and possession" really mean.
• Actual Care
The grandparent must prove they have actual care of the child such as taking responsibility for providing for the child’s daily physical and psychological needs for at least six months. This doesn’t have to be a strictly continuous six months, but having actual care on the weekends is not good enough.
• Actual control
The grandparent exercises actual control of the child by providing guidance, and direction like is typically done on a day to day basis by a parent. Some examples include deciding when bed time is, deciding how much tv to watch, and if they get to have desert after dinner. Does the grandparent normally discipline the grandchild?
• Actual possession
The grandchild lived with the grandparent for at least six months and that six month period did not end longer than 90 days before filing suit. A grandparent can’t wait until four months after the grandchild moved out - it’s too late then. Also, the actual possession doesn’t have to be exclusive. This means that one or both of the child’s parents could also be living in the home with the grandparent. So, when a Mother and the grandchild live with the grandparent for six months, even if it was intended to be temporary, this will satisfy the six month actual possession.
Another way for a grandparent to file a lawsuit for custody.
A grandparent can try to prove that the present circumstances will significantly impair the child’s physical health or emotional development. Texas Family Code § 102.003(a)(13). This generally requires the showing of some kind of danger. This can include a parent being guilty of drug addiction, alcohol addiction, family violence, child neglect or abuse, etc.
Once a suit is filed, the grandparent can request a hearing for temporary orders, which is like a mini-trial. The court will listen to testimony and receive evidence. The court can also order drug testing of any party if it is supported by a credible allegation of illegal drug use.
If a grandparent is successful, it is very likely the court will order the parent to pay child support to the grandparent and to make other orders usually customary regarding children such as a visitation schedule.
It has been my personal experience that this kind of lawsuit can ruin or severely harm family relationships, and it can take many years to heal, if ever. This should only be done when the child is in some real danger. If the grandparent is not successful, I have seen some parents then decide to restrict future access and visitation between the grandparent and the grandchild.