Texas Grandmother Must Overcome Fit-Parent Presumption to Become Possessory Conservator

iStock-1147846829Grandparents sometime take on a parental role in the lives of their grandchildren.  In some circumstances, such grandparents may have standing (i.e., the right to sue) for possession and access to the children. Parents have a fundamental right to make decisions regarding their children, however. Generally, a court in a Texas custody case cannot interfere with a fit parent’s right to make decisions for their child by awarding access or possession to a non-parent over the fit parent’s objection, unless the nonparent overcomes the presumption that the fit parent is acting in the child’s best interest. In a recent case, a father challenged a court order naming the grandmother possessory conservator.

Prior Order Provides for Parental Rights and Custody

According to the appeals court’s opinions, the parents were joint managing conservators, with the mother having the exclusive right to determine the primary residence. The mother later became ill and the grandmother, who lived with her, cared for the children. When the mother died in January 2021, the  grandmother refused to return the children to the father. He obtained a Writ of Habeas Corpus.

The grandmother intervened and asked to be appointed sole managing conservator with possession or access to the children.  The father argued she grandmother did not meet the requirements for grandparent access under Tex. Fam. Code § 153.432 or managing conservatorship pursuant to Tex. Fam. Code § 102.004.

The court issued temporary orders appointing the grandmother possessory conservator, granting her telephone access to the children, and establishing a visitation schedule.  The court also ordered a psychological expert to be appointed to perform an evaluation and act as the children’s guardian ad litem.


The father challenged the orders. He argued the trial court erred in finding the grandmother had standing because she had not overcome the fit parent presumption.

The appeals court noted that a party in a custody case must have standing to seek conservatorship of a child. Pursuant to Tex. Fam. Code 102.003(a)(9), “a nonparent . . . who has had actual care, control, and possession of the child for at least six months ending” within 90 days before the petition was filed may file suit. This provision is intended to allow a person who has served in a parent-like role to seek continued involvement in the child’s life.  This provision grants such a person “general standing” to seek conservatorship and access.

The appeals court also noted that “a person with whom the child and the child’s . . . parent have resided for at least six months” ending within 90 days before the filing of the petition may also file suit if the child’s parent is deceased. Tex. Fam. Code § 102.003(a)(11).

In her petition, the grandmother alleged she had actual custody, possession, and control of the children for more than six months and that the children and their mother lived with her at that time. She testified the mother had been diagnosed two years before the hearing and had been hospitalized several times. The mother’s home was next door to the grandmother’s home. The grandmother testified the children were with her most of the time and she had been their caregiver during their mother’s illness.  She said they began staying with her overnight around February 2020.

The appeals court found the grandmother’s testimony supported the trial court’s finding she had standing pursuant to TEX. FAM. CODE § 102.003(a) (9) and (11). The appeals court rejected the father’s argument she did not have standing because she failed to overcome the fit parent presumption, noting it confused the issue of standing with the proof needed for the non-parent to be named possessory conservator.  The appeals court found the grandmother met the requirements for standing and therefore had the right to bring the suit.

Fit-Parent Presumption

The father also argued the trial court abused its discretion in giving the grandmother possession and conservatorship rights because she had not overcome the fit-parent presumption.  The father testified he had paid child support and expenses.  He had regularly picked them up for visitation.  He testified their grades had improved and they had made friends since moving in with him. He said he and his wife were employed and did not drink or use drugs.

The father testified the grandmother made derogatory comments about him and his wife to the children and gave the children cell phones without asking or informing him.

The trial court found the father was a fit parent, but nonetheless granted temporary possessory conservatorship to the grandmother. Pursuant to previous case law, however, the grandmother cannot be awarded possessory conservatorship over a fit parent’s objection unless she overcomes the presumption he is acting in the child’s best interest. The appeals court found no evidence to overcome that presumption.

Psychological evaluation and guardian ad litem

The father also argued the court abused its discretion and interfered with his parental decision-making rights in ordering a psychological evaluation and appointment of a guardian ad litem.  The appeals court noted the best interest of the child is the primary consideration in a suit affecting the parent-child relationship. The appeals court rejected this argument, citing to Tex. R. Civ. P. 204.4(2) and Tex. Fam. Code § 107.021. The appeals court also pointed to previous case law which held psychological evaluations and guardian ad litem appointments do not interfere with the parental relationship or infringe on parental rights.  The appeals court therefore found no abuse of discretion in the court’s order for psychological evaluation and appointment of a guardian ad litem.

The appeals court directed the trial court to vacate the part of its orders that named the grandmother as a possessory conservator.

Seek Experienced Texas Legal Guidance

This case illustrates the difference between the requirements for standing and the requirements for a nonparent to succeed in obtaining access or possession of the child.  Whether you are seeking or opposing grandparent’s rights, you need the guidance and advice of an experienced Texas custody attorney. Schedule your consultation with McClure Law Group by calling our office at 214.692.8200.

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