Setting The Stage: Grandparents’ Rights

SPEAKER_00 0:03

Welcome back to the Texas Family Lawyer Podcast. I'm Alex Hunt of Hunt Law Firm, a family law firm with offices throughout the greater Houston area. Today I am pleased to be joined by Senior Attorney at Hunt Law Firm, Margaret Tucker. Welcome.

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Thanks for having me.

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And today we're going to be discussing the basics of grandparents' rights. How can grandparents get custody in Texas? How can they get time with their grandkids? And we're going to talk about some of the new changes as of the 2025 legislative session in Texas. So let's jump right in.

SPEAKER_01 0:35

Okay.

SPEAKER_00 0:36

All right.

Troxel And Texas Parental Presumption

SPEAKER_00 0:38

Margaret, our first question today is when can grandparents get custody of their grandkids in Texas? And this is a difficult question and kind of a misnomer because grandparents really don't have very many rights. There is a very strong parental presumption in the state of Texas. And it starts with a Supreme Court case called Troxel v. Granville. So tell us a little bit about that case, what it stood for, and then how it translates in Texas for grandparents.

SPEAKER_01 1:10

Okay. I think there is a lot of misinformation about grandparent rights. There really are no rights. And that's one of the cases that has come out and said that by the Supreme Court. So Troxel, the Supreme Court said that essentially biological parents are presumed to be fit, meaning that they are the ones that the court will presume can make decisions for the child, and they make the decisions for the child in the best interest of the child. So it actually confirmed the fact that biological parents have rights, but grandparents do not.

SPEAKER_00 1:48

And in Texas, um, you know, Texas doesn't have custody. We have what's called conservatorship because in Texas we like to be just a little bit different, but it's essentially custody as others uh in in throughout the United States would know it. And it's incredibly challenging for grandparents. Texas law highly favors parental rights over grandparents' rights. Um, the Troxel case is one aspect of it. And then just as recently as November of 2025, the voters in Texas enshrined in the Texas Constitution that a parent's rights are paramount. That was voted overwhelmingly by the voters. I haven't seen that in practice in our grandparent cases, but I'm sure that it's coming. And so the burden on grandparents getting custody of their grandkids is extraordinarily high.

Standing: Exclusive Care, Control, Custody

SPEAKER_00 2:38

So um a key statute in the Texas Family Code is 102.003, and it allows a grandparent to seek custody under a few different circumstances. And when I say to seek custody, I mean it just allows them to enter the case. It doesn't actually mean they're going to win the case, but it gives them what we call in the legal world standing. So tell me a little bit about uh standing and what the burden that grandparents face uh when they're trying to get custody of their grandkids.

SPEAKER_01 3:09

Okay. Um that is the very important part when you, you know, you're a grandparent, you're asking the court to give you conservatorship of the grandchild. Um, you first have to have standing in a case. This means that you're allowed to even file into a suit. Um if you do not have standing, you know, anybody can file a document into court, but the other side can dismiss you from the case because the court does not have jurisdiction over you. So um, and it's actually, you know, grandparents filing a case, that's what happens a lot of times, is if the the parents are um served in the lawsuit, they will try to throw you out of the case pretty fast because they want the court to determine if you have standing or not. So one of the the first code section is the general standing to sue, and um that is the 102-003. And that is not only grandparents, but other people that have care control and custody of the child. And you have to have had care control and custody in the last six months, for the last six months. And the code section is very specific to say you have to have exclusive care control and custody. Um, this has actually gotten a little bit tighter. And um, what that means is, you know, say you have your daughter living with you, and then by by with your coming with your daughter are the grandkids.

SPEAKER_00 4:31

Right.

SPEAKER_01 4:32

So if she lives with you, then she's making decisions.

SPEAKER_00 4:34

That's not exclusive.

SPEAKER_01 4:36

It's not exclusive. And that's the big hurdle with standing now, is that you have to have exclusive care control and custody, meaning you are making decisions for the child.

SPEAKER_00 4:46

And if your daughter then leaves the home and then leaves the grandkids there, that's when your clock starts. Yes. When you are the exclusive caregiver for that child, you're making decisions, you're enrolling them in school, you're taking them to and from school, and your daughter is absent

The “Significant Impairment” Burden

SPEAKER_00 5:02

from their lives, that's when the clock starts.

SPEAKER_01 5:04

Correct.

SPEAKER_00 5:05

So the burden, and if there's one takeaway that people have um from this uh video, this podcast, it would be this phrase that the grandpar's present living circumstances would significantly impair the child's physical health or emotional development if they are left with the grandparents. That is the burden. It is not what is in the best interests of these grandkids. It's not, well, they're living a better life with me, uh the grandparent, than they would if they were with my son or my daughter. You need to prove to the court that that grandchild is going to be in danger either physically or emotionally if we're if they're with the the grandchild's parents, and that's an extremely high burden. And um, it doesn't mean that it's impossible. Within the last uh couple months, we've had two grandparent cases that we've successfully uh had ruled upon. But just by way of example, the circumstances in those cases were egregious. Um, I mean, the parents were living in in squalor, there was uh failure to thrive, there uh were situations where the child, infant, was being left alone, um, and the judge felt if I don't do something, this child could be seriously injured or could die. Um, similarly, throughout the years, we've had cases where grandparents have said, you know, it's not fair that I don't get to see my grandchild. My grandchild wants to see me, I want to see them. But there was nothing that was dangerous about the parents. They just made a choice not to have a relationship with them. And unfortunately, for those grandparents, um, the way the law sits right now with with Troxel and with Texas Family Code, um, there's not a lot of recourse for those grandparents. So uh when can grandparents um file for uh custody? And then what does the court consider when determining whether to give those grandparents custody?

SPEAKER_01 7:10

Okay. So as we already talked about, you know, um the general standing to sue is that you've had um care control and custody, exclusive care control and custody of the child for six months. So that is the general standing to sue. Also, there is a particular grandparent statute that allows them to file for uh managing conservator, also. Um and again, there's one thing in filing to you have a standing in the case, but then you also have to meet your burden. So it's kind of two to three prongs that you have to overcome to even ask the court to give you possession and access of the child or conservatorship of the child. And so um, you know, they're looking at the parents being able to be fit. And I always tell my clients the courts are reactive, not proactive. If there is a chance that the parent is going to act in the best interest of the child, the court's going to favor the biological parents.

SPEAKER_00 8:09

Absolutely.

SPEAKER_01 8:10

So unless they have done something to warrant these children being placed with grandparents, the court is going to favor them. So um the last grandparent case that I had, um, the the parents were tested positive for drugs. And so that's one of the things that, you know, it was a young child and um the court doesn't want a child to be placed

Evidence Grandparents Must Gather

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in danger. And so they will place the the you know, the child with the grandparent. But even, you know, the cases last for a while too. And if the parents clean up their act and months have gone by and they test, you know, that they're negative for drugs, then there's a chance at the end of the case that the court can place the children back with the parents.

SPEAKER_00 8:54

Aaron Powell Which which I found most grandparents want. Most grandparents come to us not because they want to have their grandkids, but they feel that they need to have their grandkids. And 90% of them, 99% of them will say, I don't want to be dad. I don't want to be mom. I want to be grandma, I want to be grandpa. And so um, that's really a best case scenario in most cases where this was the wake-up call that the the son or the daughter needed to clean up their act, and then they do have a runway where they can get clean or they can take care of themselves and they can they can get better. The the other thing that's incredibly important note, and this is a recent change, is the burden to show uh that there would be some sort of harm to the physical health or emotional development. It used to be preponderance of the evidence. Preponderance of the evidence burden is like you can show that it's more likely than not that there's going to be some sort of harm to these kids. That's the general civil standard. What we have to prove in a grandparent case is clear and convincing evidence, which is a very high standard. It's just one rung below beyond a reasonable doubt, which is the highest standard that we have under the law. It's the criminal law standard. Um, very difficult to prove. And you've got to make sure that you've got all of your T's crossed and your I's dotted in order to win a grandparent's custody case.

SPEAKER_01 10:22

And the thing I would add is, you know, the courts are, you know, are made up of judges. They feel for grandparents. They

Seeking Time Versus Custody

SPEAKER_01 10:31

do. You know, we have consults that come into our office and we all feel for grandparents. You know, it's one thing, you know, that you have this great relationship and all of a sudden it ceases for some reason. Um but the thing you have to remember is do you have the ability to go in? Do you have, are you gonna be able to meet standing? And are you gonna be able to overcome the burden that the parent makes the just best decisions for the child in the best interest of the child? It's the fit parent presumption. And so are you going to be able to overcome it? And I I always ask, you know, people in my consults, is there any chance of making amends? Is there any chance that the the biological parents will let you see the child? You know, maybe if you wait a little while, um, is there a chance? Because, you know, if you're gonna file a grandparent case, it's probably going to sever the relationship between you and the biological parents. So you've got to have the standing and you've got to be able to meet the burden. And so while everyone feels for grandparents, it doesn't mean you meet those prongs.

SPEAKER_00 11:39

And advice that I would have for grandparents that are seeking custody of their grandkids would be to make sure that you have your uh evidence in line before you come in to speak with the attorneys. But if you need a little bit of guidance, we can certainly provide that to you. But have all of the documentation or know where to go and get it. So if you feel that there's some sort of medical neglect, um, know where the doctors are that can document that. If you see bruises, if you see anything like that, have pictures of that. If uh you have documentation that the parents are like living in squalor or there's food insecurity, take photos of the pantry when you go over. Um a lot of folks don't realize that uh, you know, you you can't you technically can put a child on the stand, but it's so rare and so frowned upon and so damaging to the kid to have to go and and be put on the witness stand. And their words typically, um, unless they're making an outcry of some sort of abuse or neglect, can't be entered into the record. So you've got to get your evidence elsewhere. You could even bring in conversations that you've had with the parents, or maybe they've admitted that there's food insecurity or there's drug use or there's uh medical uh neglect or there's abuse, and all of that is going to be helpful in order to prove your case. And it's important to do that early because there is a new change recently in the law, and that if you are a non-parent that is trying to seek custody of uh like grandchildren or somebody who's not your child, your biological child, you have to attach an affidavit to your original petition, and you have to prove that there would

Proving Substantial Past Contact

SPEAKER_00 13:20

be some sort of harm to the emotional development or physical health. The judge can kick out the case. They could look at the petition and they can kick it out right at the outset. So you've got to have that information early on in the case. So what are some practical steps that you would have uh for grandparents? What advice would you give them?

SPEAKER_01 13:42

Um The thing for me is I really do look at, you know, kind of what you just said, I really do look at the evidence. Um, you know, you need to when you consult with an attorney, you need to have what you're looking for laid out. You know, there are statutes that allow grandparents to be managing conservators. That means that they're making decisions for the child. They're talking about the health, safety, and welfare of the child. You're talking about school, you're talking about making, you know, food for the child every day. You're you're doing all of those things for the child. So you need to have evidence of that. Then there's other statutes that allow you to just have possession and access. These for me are the harder statutes because when you're going in and you're just asking to see your grandchildchild, as emotional as it may be and as, you know, as trying for all of us as it may be, unless you have evidence that something, you know, the physical health or the emotional well-being of that child is at issue, it's it's a very hard burden. So, you know, again, why are you asking for it? So are you asking to be a managing conservator? Are you asking to be a possessory conservator, which allows you to have possession of the child, but you're also making decisions for them, or are you asking just for possession and access? Those are the three different ways you can file into court. And why are you asking for each one? And the the managing conservator is the harder one to get because you're making decisions for the child. And essentially, the easiest way to think about a grandparent case is that the grandparents are stepping in the role of parents. You're kind of knocking the parents out. What gives you the right to do that? And why would a court do it? So you really have to think through what you're asking for and why. And again, if the courts are reactive and not proactive, they're not going to just guess that something could happen to the child. You have to prove that something could happen to the child. Drugs and alcohol, abandonment, um, you know, just a whole bunch of, you know, like you said before, living conditions for that child, they're not being fed properly, something that puts the child in danger.

SPEAKER_00 16:02

And and all of those circumstances, it's not impossible to get custody because we've certainly done it, but it

Affidavits And Early Case Strategy

SPEAKER_00 16:09

just goes to the point that um there are some really exceptional circumstances that need to be ongoing in order for a grandparent to get custody of their grandchild.

SPEAKER_01 16:19

Aaron Powell Correct. And just to have the, you know, have the evidence ready to go before you even file. And, you know, the longer you have the child in your care, control, and custody, the better. But on the flip side, if a parent walks back in and says, I want my kid back, now you don't have the exclusive care and control and custody. So it's kind of a balance of time, too. So it there's a lot of burdens to it, but you know, we've had many grandparent cases where we've been very successful with it. So, you know, it's not discouraging grandparents to, you know, file suit if they need to, but just know that when they float around the term grandparent rights, there really are no grandparent rights.

SPEAKER_00 16:59

And it doesn't hurt to come and do a consultation with us. Tell us your facts, allow us to apply the law to it, and we will give you advice about whether we think you have a reasonable shot.

SPEAKER_01 17:10

Of course.

SPEAKER_00 17:11

All right. Our next question is: can a grandparent get time with their grandkids through the court? So we previously talked uh about getting custody, conservatorship of the grandkids, but there are provisions in the Texas Family Code where a grandparent under certain circumstances can get possession and access or time with their grandkids. Tell us a little bit about what it takes to prove that to a court and how a grandparent can get time with their grandkids.

SPEAKER_01 17:41

Okay. Um so there's just two different ways. They can ask to be a possessory conservator, which means that they're asking to have decision making for the child, but also um to get handed some of those decision-making rights, but also to have time with the child. And then there's another code section that allows you just to have possession and access, meaning you just want to see the child. And again, we're all ruled by emotions. All of us feel, you know, that every child benefits from grandparents being in their lives, but again, you have a burden to meet. So, in the one where you're just asking in the code section that you're just asking for time with your child,

Managing vs Possessory Conservatorship

SPEAKER_01 18:24

um, there's particular things that maybe your own child, as the grandparent, your own child, the biological mother of father, is either in jail or they have died. Um, and that gives you, again, a leg up for standing.

SPEAKER_00 18:41

Very specific circumstances.

SPEAKER_01 18:42

Yes, very specific. And so just because your daughter has died, it doesn't mean that you just are handed rights to these children and you just get a possession schedule. Again, the court is going to presume that the living parent or the parent not incarcerated makes the best decisions for the child. So if they have cut you off as a grandparent, then the court's going to presume when you walk in that day, that they have made the best decision for the child. So again, how are you going to overcome the burden to show that the child is not better off without you?

SPEAKER_00 19:23

So again, the presumption is that parents act in their children's best interests. The grandparents need to have, even if their child, the child's, the grandchild's other parent, has passed away or is incarcerated for a long period of time, the grandparents have to come with very strong evidence to overcome that parental presumption that is uh enshrined in a U.S. Supreme Court case. It is enshrined now in the Texas Constitution. It is enshrined in the Texas Family Code. It is not impossible to overcome it, but you need to have all of your evidence lined up really from the get-go. You can't start the case and say, well, I'll get the evidence later. You've got to have it ready to go. You need to have it attached to an affidavit per Texas Family Code 102.0031. You need to have an affidavit that is attached to your petition because if you don't, the court can dismiss your case before you really even get started.

SPEAKER_01 20:23

Right. And if you're filing in court, most likely you're having an issue with the biological parents. So they're either not agreeing to for you to have manage a conservator or they're not agreeing to possession and access. So you always have to remember they're probably going to hire an attorney, and the attorney is going to fight the case on the other side. So, you know, you got to remember you have a kind of a battle on your hands. And so to have everything lined up when you go into a consult or hire an attorney to take a case, a grandparent case.

SPEAKER_00 20:55

So when the court is determining if denial of time with the grandparents would result in a significant impairment to the child's physical health or emotional well-being, what are some of the things that the court will consider that the number one thing is, you know, what is the grandparent adding to the child's life that

2025 Law Changes And Higher Standards

SPEAKER_00 21:21

is a benefit than if the child didn't have that person in their life?

SPEAKER_01 21:26

It is a very, very high burden because it's not based on emotion. It's not based on, well, they're just they're gonna get love from a grandparent. It's not, it has nothing to do with that. It's that the grandparent enriches that child's life in some way. Maybe they've been the one to take care of that child for the last five years. And so to cut them out, the the child may have abandonment issues. You know, that would it would significantly impair their emotional development.

SPEAKER_00 21:54

It causes trauma.

SPEAKER_01 21:55

It would cause trauma to that child. So the court is going to look at the past, what's Been going on? How did everybody behave? You know, what what what are the biological parents doing? What have the grandparents been doing? And they're going to consider all that. But again, the presumption is going to be that the parents make the best decision for the child. So you have to overcome that.

SPEAKER_00 22:16

And when a grandparent is seeking time, not necessarily custody, but time with their grandchild, and you have uh their the grandparent's child, the grandchild's parent, when you have them now out of their life, either because they're deceased or they're in prison, I think that the court is going to look at whether that parent was actively involved in the child's life and whether that grandparent was actively involved in that child's life, whether it was just going for Thanksgiving dinner and Christmas, or whether they were an active participant in the day-to-day life of that child. And sometimes the child's own wishes, particularly if they're older, could potentially play a role for the court. If the child comes to court and they have an in-chambers interview with the judge and they say, I want to continue to have a relationship and they can articulate why. I think that the court would take that into consideration, but documenting that substantial past contact is going to be the key to winning the case. And secondary to that, not only showing we've spent more than just Thanksgivings and Christmases and birthdays together, I was a real part of this child's life, is showing what is it going to look like for that child. And maybe there's already evidence of the abandonment or the trauma that's already starting to, you know, rear its head, is show what is that going to do to that child. All of that is going to be taken into account by the court.

SPEAKER_01 23:47

Sure. And it's it's another thing to add is, you know, it's it's especially difficult in a grandparent case because if you don't have access to the child, when like a grandparent is filing for possession and access, it's hard to get to the actual child themselves during a case because they're with the biological parents. So, you know, that sometimes creates an extra hardship in a grandparent case to actually get to the kid to say, How do you feel about this?

New Affidavit Requirement Under 102.0031

SPEAKER_01 24:15

You know. So it's just another thing to consider when you're moving forward in a grandparent case.

SPEAKER_00 24:20

And just as we wrap up this topic, some practical steps for grandparents that are potentially looking to file a case for time with their grandkids. You know, they're going to file a petition under chapter 153 of the family code. They need to attach their supporting affidavit with facts and evidence. They need to be truthful in that affidavit, and they really need to bring it all to that affidavit. They can't hold anything back. Um, and sometimes filing that affidavit might be the nuclear bomb that just kind of drops on the other parent. And it might mean that if there was a possible chance of reconciliation with their, not their kid, with the other the grandchild's other parent, um, that might end it, bringing legal action. And you're going to have to outline all of the things that the person is doing to harm their grandchild, um, that can be pretty, pretty harmful. Um, but if you do decide to move forward with this, gathering that documentation of medical records, communications with the child, therapy records, uh, texts, photos, emails, um, possible witnesses that could testify into how close the relationship is between that grandparent and that grandchild. All of that is going to be incredibly important. And it's I would start a journal or a notebook and get all that information um together. And then the last piece of advice uh would be to as soon as early on as possible is to consult with uh a family law attorney. Because while we do have compassion for grandparents, we look at things from a different lens. We've have the knowledge of what it takes, and we've done these cases, and we can analyze a grandparent's specific scenario and set of facts. And we can't tell them with 100% certainty what would happen if they went to court, but

“Exclusive” Standing Explained And Proven

SPEAKER_00 26:20

we can tell them um their likelihood of success, what some of the weaknesses and what some of the strengths are in their case.

SPEAKER_01 26:26

Sure. And like when I have a grandparent consult, I actually do give them the code sections. I tell them this is what the burdens are. This is, you know, you're standing. We have to meet not only standing, but we have to meet the burdens. And so, you know, maybe if they are in the care control and custody of the child, then, you know, then they have to meet their six months. Now they know to document. So if they maybe wait a little while, they can collect more evidence or start looking, you know, to, as you said, people to testify, those kind of things. So if you know what you are walking into when you file in court as a grandparent, then kind of work backwards and and say, you know, I've lined up everything to give the court everything I have to be part of this child's life. So one way or the other, whether it's manage a conservator or as um possessory conservator or just possession and access.

SPEAKER_00 27:19

All right. Our next question is there have been quite a few statutory changes in 2025 to grandparents' rights in Texas. And specifically, those uh changes have made it a lot more difficult for grandparents to get time and to get custody with their grandkids. Tell us just a 30,000-foot view of what some of these changes are and what they mean for grandparents that might be trying to get custody of their grandkids in Texas.

SPEAKER_01 27:51

Okay. I would say kind of an overall broad answer is that it was difficult before and they've made it even more difficult. So the courts are literally sending the legislature also is sending the message that you need to understand what you're up against in court, and it is going to be, you have to overcome these burdens. I mean, there is no way to go around it. There is no easy solution. I I have grandparents that come to me and it's like, but you know, he's he's going out at nights, he's drinking. You know, dad is, you know, mom passed away and dad's go drinking and we have the child. But my first question is, is he over 21? Yes.

Clear And Convincing Evidence In 153

SPEAKER_01 28:35

Is he allowed to go out drinking? Yes. Were you in charge of the child and did you protect the child? And he knew it? Yes. So the answer is I mean, he went out when he was allowed to and he's drinking. So, you know, you've got to ask a lot of questions about, you know, what it is that you're presenting. And so courts are making it more difficult because if a judge rules and lets a grandparent take a child and gives them conservatorship, it it's a possible appeal. And so courts don't want to be over, you know, overruled by an appellate court. So they are going to protect the biological parents and their decision-making powers.

SPEAKER_00 29:13

So And don't get and don't get us wrong, we have sympathy for the grandparents that come in that are emotionally destroyed by not being able to have a relationship with their grandkids or they feel that their grandkids are in a not great situation. But what I tell my clients is you can't win if there is a bad parent on the other side. You need to have a dangerous parent, a parent that is going to inflict physical harm or emotional distress upon that child. And those are two very different things.

SPEAKER_01 29:47

I mean, drugs is a great example of a way that a court would look at that and say, the child's in danger. This is not okay. You know, this is a little infant, and somebody on drugs cannot take care of this child. And so they're just tighter. And so they're they're watching who is able to get custody or possession of a child beyond the biological parents.

SPEAKER_00 30:12

So let's go specifically through some of the changes. The first one is uh 102, Texas Family Code 102.0031. This requires uh one additional step when you're filing a petition uh for grandparent custody. Specifically, you have to file an affidavit. Tell me a little bit about that affidavit, what it involves, and what needs to go into it.

SPEAKER_01 30:34

Okay. Whenever I do an affidavit for a client, I always tell them when you put words down for a court, everything needs to be a hundred percent. It needs to be completely correct, completely proper. We need to put everything we have into this affidavit. So you're laying it out for the court. The good news is when you do an affidavit, you don't have to worry as much about hearsay and other objections coming into that. So you can you're able to say,

Constitutionally Paramount Parental Rights

SPEAKER_01 31:05

the child said, this person said. So it gives you a little leg up in the fact that you're able to put those kind of things in an affidavit that you might not be able to get into testimony in a court. And so you're able to do all that. But on the flip side, you've got to lay it out for the court. So everything needs to be put in there. You know, we talked about how much time you spend with the child, are you making decisions for the child? Are you going to the schools? Are you doing doctor's appointments? Are you making decisions for this child? Or, you know, if it's possession and access, you know, what what time did you spend with the child? Um, you know, did you live with the family? Did they live with you? Um, and that you saw the kids on a daily basis. And, you know, why the child needs you in that world? What is going to affect their emotional development if you're not in their world? You need to lay it out, be very, very clear. And it's got to be very convincing.

SPEAKER_00 32:03

And what the danger is to that grandchild, because you need to overcome the parental presumption. And you really need to do it in that affidavit. Absolutely. Because if you don't do that, the court could dismiss your case at the very outset before you even really get started, and before you're able to put witnesses in front of the judge and all that. You need to prove kind of a prima facie case in the affidavit that you can be successful if you prove all the things in that affidavit.

unknown 32:30

Correct.

SPEAKER_00 32:31

So the other changes uh occur in uh section 102, which is the general standing statute. And tell us a little bit about some of the changes that would affect grandparents in standing, which is how a grandparent can even get into the case, not necessarily win the case, but just allows them to get into the case.

SPEAKER_01 32:52

Okay. And 102.003 is the general standing to suit. So um this is the the standing for pretty much anybody who has had care control and custody of the child. So it's not just grandparents. So this one's the I will use the term easier code section to to go in under. But when I use the word easy, that doesn't

Practical Takeaways And Firm Resources

SPEAKER_01 33:14

mean it's an easy statute to to get into a court, but it is the easier one to use. Uh, but they have now you'd added the word exclusive. And so in the past, you know, if a grandparent was around a lot and maybe they lived with them, those kind of things, but now you have to be the decision maker for the child for six months. I mean, you have to be the one that, you know, mom and dad are not in the picture. They are not making decisions for that child. You are. So it is very limiting into filing under this code section. So if you have it, then that does get you in. And so you have to prove to the court. So again, we talk about how to prove it, get your evidence. You know, you've been buying clothes for the child off Amazon for six months, you know, you've been going to the doctor, you've been emailing with their school. Those kind of things are evidence to show that you've had that exclusive care control and custody for six months.

SPEAKER_00 34:11

And you still have to file the affidavit and you need to prove the same things. And then in order to win the case, you still have to prove your case, but that allows you to get in the in the door. One fifth uh chap Texas Family Code chapter 153 outlines how a grandparent can get custody of uh their grandkids, and there were some major changes there, particularly 153.002, if anybody's out there and wanted to look it up, that specifically says that uh increase the burden to clear and convincing evidence. Used to be preponderance of the evidence for a grandparent to have to show that uh the parent was not a fit parent. It's now clear and convincing evidence, which is just a rung below reason uh beyond a reasonable doubt, which is the highest burden. It's the criminal statute, uh criminal standard. And it's a very high burden. You've really got to bring your A game, you've got to bring all of your evidence, and um, you've got to prove by clear and convincing evidence that the court denying the relief that the grandparent is seeking would significantly impair the physical health or emotional development of that child. And you've got to bring doctor's notes, you've got to bring uh therapy records, you've got to bring texts and pictures, and you can't you really can't rely on just you know the words of the parties, you've got to bring quite a bit.

SPEAKER_01 35:43

And I mean, it's always to remember that if you're up against a biological parent, they're likely gonna have an attorney and they're they're likely going to fight back. So that's why the burden is so high. And so clear and convincing evidence is that without any doubt, you need to you need to place this child with a grandparent over the the you know wishes of the parent, the biological parent, over them making decisions for them. This grandparent is the one that the child should be placed with.

SPEAKER_00 36:15

And we've we've really hammered home the point that this is going to be a difficult thing to prove. It's a high burden. Does not mean that it's impossible, though. And um, you know, like I mentioned, just this year we've had several successes where we've gotten grandparents, their grandchildren, and we we proved the case. Um and we had, you know, numerous, numerous exhibits to to bring home the point that this child would be endangered if he stayed with the um the parents. And it's an unfortunate situation. But the judges, if they get the evidence in front of them and they truly believe that this child's gonna be in danger if he stays with the parents or she stays with the parents, then most of the time they're gonna do the right thing and they're gonna make sure that this child is protected. So those are just a few of the family law uh code changes that have occurred. Um and then, you know, the overarching change has been to the Texas Constitution, which gets changed uh a lot more than the U.S. Constitution, quite a bit. Um, but the uh the the big change there was that they enshrined in the Texas Constitution that parents are the paramount decision makers for their kids. And we haven't seen that play out in practice, but I imagine that we will soon. Um, and that would certainly, if we were defending a gr uh a parent against a uh grandparent trying to get custody of the kids, I'm sure that that's something that we would rely on. So all of these changes um, you know, we'll see play out in practice and um very important.

SPEAKER_01 37:44

It is very important. And everybody does feel for grandparents, and it's a very emotional issue. And so it's back best to step back and look at it from a court's perspective and you know, try to take the emotion out and look at it, you know, with evidence and look at it with code sections and do you have standing? Do you meet the burden? Do you have evidence? And kind of look at it in a clinical way because we all feel for grandparents, but it doesn't equate getting possession or access, and it doesn't equate getting conservatorship.

SPEAKER_00 38:17

Well, Margaret, thank you so much for helping us break down the barent, the basics of grandparents' rights in Texas. And if anybody out there is looking for some family law assistance, we have offices in Katy, Cyprus, Sugarland, League City, Hunt Law Firm. We're here to help. You could find us online at familylawyerkatie.com. Please uh subscribe to the podcast, uh, like this uh post, go on YouTube. We have plenty more videos uh where this is. Go to our website, look at our resources page. We're here to help. Thanks so much, Margaret. See you next time.