Can I seek custody for a child that’s not my own?
Under certain circumstances in Texas, non-parents can obtain “custody” of children. The rules of non-parent rights are very complicated and procedural mistakes can irreparably damage your case. It is very important that you hire a family law attorney who knows these rules to ensure that your case goes as smoothly as possible.
Despite the complexity of the law surrounding non-parent rights, The Texas Family Code provides several paths to non-parents obtaining custody (also called conservatorship). There are several steps involved which we will outline below:
The first step for a non-parent to obtain custody of a child is to determine whether you have “standing” to pursue a custody lawsuit. Standing is a person’s ability or right to bring and maintain a custody lawsuit. It is important to keep in mind that obtaining standing to bring your custody case, while a crucially important part of the process, does not mean that a court has awarded you actual custody or visitation. Once the issue of standing has been determined, the next step is to determine what rights a court will grant you.
In Texas, there are essentially three different ways a non-parent can obtain standing to request custody of a child in Texas.
1. The “Actual Care and Control” Standard
In general, the Texas Family Code allows for any person to file suit to obtain custody of a child if the person has had “actual care and control” of the child for six months or longer. “Actual care and control” is a legal term that is not explicitly defined in the Texas Family Code. Whether you meet this burden will depend on the facts of your case. In the simplest terms, if you have shared a home with a child and served in a parent-like role for six months or more, it is possible that a court will grant you standing to pursue your case. Some examples of the parent-like role would be making and enforcing house rules, taking the child to important appointments, communicating with doctors and teachers, and helping with homework. The more of these kinds of things that are true about your relationship with the child, the more likely it is a court will grant you standing.
2. The “Significant Impairment” Standard
The significant impairment standard is one of the highest burdens a court will impose. To pursue your grandparent custody suit under this standard, you must show that your grandchild’s present circumstances are so bad that they will significantly impair his/her physical health or emotional development. Examples of things that might meet this burden are drug or alcohol abuse, physical abuse, neglect, or emotional abuse by the child’s parents or caregivers. Needless to say, this is a high burden to meet, but if you are able to meet it, a court is likely to grant you standing to pursue your case.
It is very important to note that this standard is only available to people related to the child within the “third degree of consanguinity.” This is a fancy legal term that means blood relative. People within the third degree of consanguinity are: parents, children, grandparents, siblings, aunts and uncles. Cousins, great-grandparents, or great aunts and uncles are not included.
3. The “Mutual Consent” Standard
This is perhaps the easiest to understand, but most difficult to obtain standard. Essentially, if BOTH parents “consent” to your non-parent custody suit, the court will grant you standing to pursue it (one parent’s consent is not enough). It is rare for both of a child’s biological parents to agree to a non-parent custody suit, but it does happen. This usually happens when both parents know that they cannot care for their kids and need help from grandparents or other relatives.
It is important to note that the mutual consent standard also only applies to relatives within the third degree of consanguinity.
Once you have been awarded standing in your custody case, you can then ask the court for specific relief related to the child. Depending on the specifics of your case, a court can order a wide range of visitation options as well as decision-making rights and duties related to the child.
The court’s primary concern is always going to be the best interests of the children in any custody case. The court always begins with the presumption that the parent-child relationship should be preserved and maintained above all others—even over other family members such as siblings and grandparents. Therefore, it is important to keep in mind that, when deciding the rights and duties to award and the visitation schedule to put in place, the court will favor the parents unless there is a very compelling reason not to.
In any event, it is important to have lawyers who know how to present this complicated area of the law to a court so that you have the best chance of success.