Grandparents’ Rights in Austin: Visitation, Custody and What the Texas Family Code Actually Requires

When a grandparent is cut off from a grandchild, the instinct is to ask for a visitation schedule. The Family Code answers a narrower question. It lets certain grandparents ask for time with a grandchild, only in listed situations, and only after clearing a presumption in favor of the parents. A grandparent who wants more than time, such as a say in where the child lives, is asking for something different and meets a different set of rules. Most of these cases are decided at the first step, which is whether the statute lets you file at all.

If you are speaking with an Austin child custody lawyer about a grandchild, this page sorts the possible claims, explains who may ask for access and what the affidavit must say, describes the custody options and the limits on them, and lists what to gather before anyone files in Travis County.

Which Door Are You Knocking On?

• Scheduled time with the grandchild. The statute allows a biological or adoptive grandparent to petition for possession of or access to a grandchild, under conditions that Sections 153.432 and 153.433 spell out.
• Managing conservatorship. A grandparent or another relative within the fourth degree may file an original suit asking to be a managing conservator, with satisfactory proof of one of two things (Section 102.004).
• Joining a case that is already pending. A grandparent may intervene in a suit filed by someone who has standing, if satisfactory proof shows that naming the parents as conservators would significantly impair the child (Section 102.004).
• Already caring for the child. Someone who has had the child in exclusive care for six months or more, with that period ending within 90 days of the filing, may file an original suit (Section 102.003).
• Both parents have died. A relative within the fourth degree has standing to file (Section 102.003), and the court may consider appointing a parent, sister or brother of a deceased parent as managing conservator (Section 153.431).
• A child in immediate danger. Ask about emergency custody orders, which follow different rules.

Who May Ask for Possession or Access

A biological or adoptive grandparent may file an original suit, or a suit to modify an existing order, to ask for possession of or access to a grandchild. The suit can be filed for that purpose alone, whether or not anyone is asking the court to name a managing conservator (Section 153.432). The court may then order reasonable possession or access only if three conditions are met (Section 153.433):

1. When the request is made, at least one biological or adoptive parent of the child still has parental rights.
2. The grandparent rebuts the presumption that a parent is acting in the child’s best interest, which the next section covers.
3. The grandparent is the parent of one of the child’s parents, and that parent fits one of four descriptions: in jail or prison at some point in the three months before the petition was filed, found by a court to be incompetent, dead, or without actual or court-ordered possession of or access to the child.

The statute names biological and adoptive grandparents only. Step-grandparents and other relatives are not listed in the access statute, though other standing rules in this page may apply to them. The third condition is the one that decides most cases. If your son or daughter lives with the grandchild or has court-ordered time, none of the four descriptions fits, and the statute gives you no access claim however close you are to the child.

What the Grandparent Must Prove

• The presumption. A parent is presumed to act in the best interest of the parent’s child. In an access case, the grandparent overcomes the presumption by proving that denying possession or access would significantly impair the child’s physical health or emotional well-being (Section 153.433).
• The standard of proof. The access statute sets a preponderance of the evidence, which means more likely than not (Section 153.433).
• What it is about. The question is harm to the child. The statute does not define significant impairment, and missing the child or disagreeing with the parents does not answer it.
• The court’s discretion. Even when every condition is met, the court “may” order access, and the access must be reasonable.
• Findings over an objection. An order granting access over a parent’s objection must state specifically that the conditions were met, including the finding on significant impairment (Section 153.433).

The Affidavit That Opens the Case

Whoever files must sign and attach an affidavit, on knowledge or belief, that includes supporting facts and the allegation that denying possession or access would significantly impair the child’s physical health or emotional well-being. The court must deny relief and dismiss the suit unless the facts in the affidavit, if true, would be enough to support relief under Section 153.433 (Section 153.432). The affidavit is therefore the first test. An affidavit that says only that the child is close to you and the parents have refused your calls will not carry the case.

Married Parents and the Home Where the Child Lives

The statute has no separate track for married parents. What matters is the third condition above. If the parents are married, living together and caring for the child, the grandparent’s own child has possession of the grandchild, and none of the four descriptions applies. A suit for access is likely to fail at the first step.

A grandparent who is shut out in that situation has two practical options. One is a calm, written effort to repair the relationship with the parents. The other is an agreed arrangement, which requires no court finding because the parents consent. See the section on settling without a trial below.

Asking for Custody Instead of Visitation

• Managing conservatorship. A grandparent or other relative within the fourth degree may file an original suit asking to be managing conservator if satisfactory proof shows either that the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development, or that both parents, the surviving parent or the managing conservator or custodian filed the petition or consented to the suit (Section 102.004).
• No original suit for possessory conservatorship. A grandparent may not file one, but may intervene in a pending suit as described above (Section 102.004).
• The parent-versus-nonparent presumption. In a suit between a parent and a nonparent, the parent is presumed to act in the child’s best interest and to be the right person to have care, custody and control. The nonparent may overcome the presumption by proving, by clear and convincing evidence, that denying the relief would significantly impair the child’s physical health or emotional development, and the order must state the specific facts that support that finding (Section 153.002).
• Different standards for different claims. The access statute uses a preponderance standard. The conservatorship presumption uses clear and convincing evidence. Which one governs depends on what you ask for, so be clear about the request before you file.

Our page on custody rights and duties explains what a managing conservator may decide. If no parent can make legal decisions for the child, an Austin guardianship lawyer can explain whether a guardianship fits better, and the page on guardianship versus custody compares the two.

If a Parent’s Rights Were Ended or the Child Was Adopted

• At least one parent must keep rights. The access statute requires that at least one biological or adoptive parent has not had parental rights terminated when relief is requested (Section 153.433).
• The adoption bar. Access cannot be requested once two things are both true. First, every biological parent has died, lost parental rights or signed a Chapter 161 waiver or relinquishment naming the state agency, a child-placing agency or anyone other than a stepparent as managing conservator. Second, someone other than a stepparent has adopted the child or has an adoption suit pending (Section 153.434).
• Stepparent adoption. Adoption by a stepparent is outside that bar.
• Standing after termination. When the parent-child relationship between a child and every living parent has been terminated, the statute limits who may file an original suit, with exceptions that include a relative within the fourth degree who files for managing conservatorship within 90 days after a termination in a suit by the Department of Family and Protective Services (Section 102.006).

Court-Appointed Helpers for the Child

A court does not have to appoint anyone to speak for the child. In a suit about a child’s best interests, it may appoint an amicus attorney, an attorney ad litem or a guardian ad litem, and may do so only if it finds the appointment necessary to determine the child’s best interests. The court must consider the parties’ ability to pay the appointee and the cost of alternatives (Section 107.021). A guardian ad litem is a person appointed to represent the child’s best interests and need not be an attorney (Section 107.001). If one is appointed, answer questions honestly and give the appointee the records requested.

Evidence That Supports a Grandparent’s Case

• A dated history of your role. Living arrangements, caregiving, school pickups, medical visits and holidays, with approximate dates.
• Records that name you. Emergency contact forms, school and medical records and activity registrations.
• Proof of support. Receipts and payments for the child’s needs.
• People who saw it. Teachers, doctors, coaches and neighbors who can describe your role first-hand.
• When and how contact stopped. What you asked for, what the parent said, and the messages, in writing.
• Effects on the child. Documented changes in health, behavior or schooling, from a doctor, counselor or teacher.
• The parent’s status. A death certificate, jail or prison records, an incompetency order or the order showing the parent has no possession or access.

Settling Without a Trial

Many grandparent disputes end in an agreed order, which is easier on the child than a hearing. A court may refer a suit affecting the parent-child relationship to mediation on the parties’ written agreement or on its own motion (Section 153.0071). Our page on grandparent and third-party custody mediation describes how that works in Austin. Once the judge signs an agreed order, it can be enforced, which an informal promise cannot. The case that carries these requests is described on our page about the suit affecting the parent-child relationship.

What This Means for Your Travis County Case

1. Establish whether you are a biological or adoptive grandparent, and which of your children is the child’s parent.
2. Find out that parent’s status: in jail or prison in the last three months, found incompetent, dead, or without possession of or access to the child.
3. Check whether either parent’s rights have been terminated or the child has been or is being adopted.
4. Decide what you are asking for: time with the child, managing conservatorship or a role in a case already pending.
5. Build a dated timeline of your involvement and of when contact ended, and collect the records and witnesses that support it.
6. Write to the parents in a calm tone, keep copies, and never take the child without their permission.
7. Before anything is filed, tell us about any open custody case, protective order or CPS involvement.

More About Grandparents and Custody in Austin

These guides cover related questions.

• parentage and paternity actions: when a grandparent’s son is an unmarried father.
• modifying a Travis County custody order: asking to change an order that already exists.
• best interest standard in Austin: what a judge weighs.
• emergency custody orders in Travis County: acting when a grandchild is not safe at home.

Why Austin Clients Choose Barton & Associates for Grandparents’ Rights Cases

Barton & Associates has tried Texas cases since 2001. The firm’s family law attorneys include Duane Graeff, our managing attorney, who has practiced for more than 26 years, and Desirée Flye, a trial attorney on the family law team. A grandparent case is decided by whether the statute lets you file and what the affidavit says. We test those two points first, tell you what the evidence would have to show and say plainly when the facts fall short.

We cannot promise a result. What we can do is tell you what the statutes require, what we recommend and what each choice risks. The first consultation is free and confidential. Our Austin office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701, and we meet with clients there by appointment. You can get directions to our office before your visit. For the first meeting, bring what you can of the following, and call even if you cannot find everything.

• The names and birth dates of your grandchild and of each parent
• Any custody, divorce or protective order, with the cause number
• A timeline of your time with the grandchild and of when contact stopped
• School, medical and activity records that list you
• Receipts or records of money you spent on the child
• Messages about visits and the reasons they were refused or stopped
• Proof of the parent’s status, such as a death certificate, jail records or an incompetency order
• A calendar of your key dates and deadlines

Frequently Asked Questions About Grandparents’ Rights in Austin

Do Texas grandparents have a legal right to visitation?

Not automatically. A biological or adoptive grandparent may petition for possession of or access to a grandchild, but a judge may grant it only when the statutory conditions are met and the grandparent rebuts the presumption that a parent acts in the child’s best interest (Family Code Sections 153.432 and 153.433).

Who counts as a grandparent under the access statute?

A biological or adoptive grandparent who is the parent of one of the child’s parents. The statute does not list step-grandparents or other relatives. A person who has cared for a child may have other standing options, such as having had exclusive care, control and possession for at least six months (Section 102.003).

Which situations let a grandparent ask for access?

Look at your own son or daughter, the child’s parent. That parent must have spent time in jail or prison in the three months before filing, been declared incompetent by a court, died, or have no actual or court-ordered possession of or access to the child. In addition, one parent must still hold parental rights (Section 153.433).

What does a grandparent have to prove?

That denying possession or access would significantly impair the child’s physical health or emotional well-being. The access statute sets the standard at a preponderance of the evidence, which means more likely than not (Section 153.433). The focus is the child’s harm, not the grandparent’s wishes.

My grandchild’s parents are married and living together. Can I still ask for visitation?

Probably not under the access statute. If the parent who is your child has possession of the grandchild, none of the four situations applies, however strong your bond is (Section 153.433). The parents may still agree to an arrangement, and a calm relationship with them is usually the more reliable path.

Can I ask for time with my grandchild after my son or daughter dies?

Often, if the other parent still has parental rights. The death of your child satisfies one of the statutory situations, but you must still prove that denying access would significantly impair the child’s physical health or emotional well-being (Section 153.433).

What is the affidavit a grandparent has to file?

It is a sworn statement of facts, on knowledge or belief, saying that denying possession or access would significantly impair the child’s physical health or emotional well-being. The court must dismiss the suit unless the facts stated, if true, would support relief under the statute (Section 153.432).

Can a grandparent ask for custody of a grandchild?

A grandparent may file an original suit for managing conservatorship with satisfactory proof that the child’s present circumstances would significantly impair the child’s physical health or emotional development, or that both parents, the surviving parent or the managing conservator filed or consented (Section 102.004). Against a parent, the grandparent must overcome the parental presumption by clear and convincing evidence, and the order must state the supporting facts (Section 153.002).

Can a grandparent intervene in someone else’s custody suit?

Sometimes. A grandparent or other relative within the fourth degree may intervene in a pending suit that an authorized person filed, but only with satisfactory proof that appointing a parent as sole managing conservator, or both as joint managing conservators, would significantly impair the child. No grandparent may begin an original suit for possessory conservatorship (Section 102.004).

Does an adoption end a grandparent’s right to ask for access?

Only when two things happen together: every biological parent has died, lost parental rights or signed a qualifying waiver or relinquishment, and someone other than a stepparent has adopted the child or has an adoption suit pending (Section 153.434). A stepparent adoption does not trigger the bar.

Will the judge appoint someone to represent my grandchild?

Possibly. A court may appoint an amicus attorney, an attorney ad litem or a guardian ad litem in a suit about a child’s best interests, but only if it finds the appointment necessary, after weighing the parties’ ability to pay and the cost of alternatives (Section 107.021). Appointment is a decision for the judge, not an automatic step.

Can the grandparents and parents work it out without a trial?

Often. Mediation can happen on the parties’ written agreement or the court’s own motion (Section 153.0071), and the judge can then sign an agreed order, which is enforceable once signed. Have a lawyer read the holidays, exchanges and change provisions before you agree.

What should I bring to the first meeting about grandparents’ rights?

Bring the names and birth dates of your grandchild and each parent, any custody or protective order with its cause number, and a timeline of your time with the child. Add proof of the parent’s status, records that list you and messages about visits. Call even if some of it is missing.

Talk With an Austin Grandparents’ Rights Attorney

Whether you can file at all depends on the facts about the child’s parents. Speak with an Austin family law attorney at Barton & Associates before you file a petition or give up on seeing your grandchild.

Call our Austin office at 512-THE-FIRM (843-3476) or complete the online Free Consultation form to schedule a confidential meeting about your case. Consultations at the office are by appointment only. The office is at 316 W. 12th Street, Suite 400, Austin, Texas 78701.

Main Category: Family Law Austin
Practice Area Category: Child Custody
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)