Grandparents’ Rights – The Times They Are a-Changing

Personal InjuryI have written before about a common misconception about grandparents’ rights, specifically related to a grandparent’s “standing” to file suit related to the custody of or visitation with a minor grandchild. A recent decision by the Texas Supreme Court brings new focus to this issue.

About 10 years ago, the United States Supreme Court ruled, in Troxel v. Granville, a case out of the state of Washington, that grandparents had no standing to file suit in a Suit Affecting Parent Child Relationship. Standing, the first hurdle you must clear when filing a lawsuit, essentially requires that you have capacity to file suit. As a general rule, it means that you are a party with an interest in the outcome. After standing is established, the court can move on to the merits of the case, rendering a decision based on the best interests of the child.

Before Troxel, many grandparents intervened in cases involving their grandchildren, often when there were concerns about parental substance abuse or other issues related to the health or safety to the child. Even after Troxel, though, I would get daily calls from grandparents who wanted primary conservatorship of their grandchildren. Because of the ruling in Troxel, I would have to tell them that, unless they had actual physical care, custody, and control of their grandchildren (to the exclusion of their children), they would likely not have standing to bring such a lawsuit.

About a week ago, the Texas Supreme Court ruled, in Strickland, 02-11-00501-CV,that a non-parent having actual care, custody or control (even if it is shared with the parent) of a minor child has standing. It is important to understand this does not mean that grandparents or other non-parent petitioners will obtain primary conservatorship. It only means that a grandparent or non-parent may now have the right to initiate or intervene in such a lawsuit.

I don’t think it is an exaggeration to say that this has literally turned our world upside down. For all of you who are considering living with your parents for a few months to get on your feet, consider your choice carefully. For those of you who want to bring legal action to obtain primary conservatorship of a grandchild, you need to call a qualified family law practitioner.

While the opinion of the Texas Supreme Court opens a door, it’s important to understand that standing is still fact dependent. Additionally, just because you have standing doesn’t mean you’ll get primary conservatorship. It only means you have the right to be a party to the lawsuit. You’ll still need to demonstrate that granting you conservatorship is in the best interests of the child. For now, though, there is a path for those grandparents and other non-parents who have exercised actual care, custody, and control of a child, to protect their grandchildren.