In deciding questions of conservatorship, there is a presumption deeply embedded in the law that the child’s best interests are served by awarding custody to a natural parent (the “parental presumption”).
Moreover, the U.S. Supreme Court has held that parents enjoy a fundamental right to make decisions concerning the custody, care, and control of their children.
Accordingly, grandparents face significant hurdles in gaining custody or access to their grandchildren over the parents’ objection. If you are a grandparent seeking custody of your grandchild, a family law attorney could help. A grandparents’ rights lawyer could guide you through this process and work hard to protect you and your grandchild.
When May a Grandparent Receive Custody of a Grandchild?
In the custody context, to overcome the presumption that a parent must be appointed as a managing conservator of a child, a court must find one of the following:
- Appointment of the parent or parents would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development; or
- The parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the filing of the suit, and the appointment of the nonparent or agency as managing conservator is in the child’s best interest; or
- The parent has a history of family violence.
A lawyer could determine if a grandparent may be able to exercise their right to custody of their grandchild.
Possession and Access to Grandchildren
In addition to seeking conservatorship of a child, a lawyer could help a biological or adoptive grandparent exercise their right to seek a court order granting possession of or access to a grandchild. There is a distinction under the law between “possession” and “access.”
A person with rights of “possession of” children may exercise possession and control of the children to the exclusion of all other persons, including the managing conservator, during periods of possession. By contrast, a person with rights of “access to” children may approach them, communicate with them, and visit with them, but may not take possession or control of the children away from the managing conservator.
A court may order reasonable possession of or access to a grandchild by a grandparent if at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated and the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child. To prove this the grandparent must show that the denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being. Additionally, the grandparent requesting possession of or access to the child must be a parent of the child’s parent and this parent:
- Has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
- Has been found by a court to be incompetent;
- Is dead; or
- Does not have actual or court-ordered possession of or access to the child.
Contact an experienced Grandparents’ Rights Attorney
If you need more information from a grandparents’ rights lawyer, contact the Law Office of Ben Carrasco by calling or filling out an online form.