Grandparent Custody and Access

Section 102.004 of the Texas Family Code gives grandparents limited ability to obtain custody and access:

1. A suit by a grandparent requesting managing conservatorship of a child (primary custody) may be filed if there is satisfactory proof to the court that:
a. The order requested is necessary because the child's present environment presents a serious question concerning the child's physical health or welfare. Dohrn v. Delgado, 941 S.W.2d 244, 248-49 (Tex.App.-Corpus Christi 1996, no writ); or

b. Both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

2. A suit may not be filed by a grandparent requesting possessory conservatorship (limited rights), but the grandparent may intervene if there is a suit pending. TEX.FAM.CODE ANN. § 102.004(b).

3. A grandparent may bring an action to obtain access to a grandchild. TEX.FAM.CODE ANN. § 153.432.

See In re Johnston, 957 S.W.2d 945 (Tex.App.-Beaumont 1997, no writ); Bowers v. Matula, 943 S.W.2d 536 (Tex.App.-Houston [1st Dist.] 1997, no writ)(holding that the maternal grandparents of a child had standing to request access when they filed their petition, so the subsequent termination of their child's parental rights did not deprive them that standing).

After an order has been rendered and a court has acquired continuing jurisdiction over a child, the death of one of the parents of the child does not deprive the court of jurisdiction over matters involving the grandparents. See Dohrn, 941 S.W.2d at 247. Compare Smelscer v. Smelscer, 901 S.W.2d 708 (Tex.App.-El Paso 1995, no writ) (trial court that rendered an underlying final order retains continuing jurisdiction over the child with regard to a suit filed by the grandparent).

Holmes, Diggs, Eames & Puhl
Campbell Centre I
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Dallas, Texas 75206
Phone: 214.520.8100
Facsimile: 214.520.6565
Website: www.texasfamilylawyers.com
E-mail: e-mail@texfamlaw.com

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