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Texas Grandparent Rights
§ 35.5 Access to Grandchild

A Grandparent may request access to child, which gives the grandparent visitation rights but none of the other rights of a possessory conservator. See Texas Family Code Ann § 102.004(c) (Vernon Supp. 2001), chapter 153, subchapter. H (1996 & Supp. 2001). Unless a grandparent can intervene in a pending suit for modification requesting access to a grandchild as the only alternative for a grandparent who cannot or does not want to request managing or joint managing conservatorship. See Texas Family Code § 102.004.

A biological or adoptive grandparent may not request possession of an access to a grandchild if:

1. Each of the biological parents of the grandchild has died, had the person’s parental rights terminated, or executed an affidavit of waiver of interest in child or an affidavit of relinquishment of parental rights under Code chapter 161 that designates an authorized agency , licensed child-placing agency, or person other than the child’s stepparent as the child’s managing conservator; and

2. The grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child’s stepparent.

Texas Family Code § 153.434 (Supp. 2001).

Access to a child by a grandparent is governed by the standards established by Code chapter 153. Texas Family Code § 102.004(c). A biological or adoptive grandparent may request access to a grandchild by filing an original suit or a suit for modification as provided by Code chapter 156. Texas Family Code § 153.432(a) (1996). A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit. Texas Family Code § 153.432(b).

The court shall order reasonable access to a grandchild by a grandparent if, at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated, access is in the best interest of the child, and at least one of the following facts is present:

1. The grandparent requesting access to the child is a parent of a parent of the child and that of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition of has been found by a court to be incompetent or is dead; or

2. The parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition or a suit for the dissolution of the parents’ marriage is pending; or

3. The child has been abused or neglected by a parent of the child; or 

4. The child has been adjudicated to be a child in need of supervision or a delinquent child under title 3 of the Family Code; or

5. The grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or

6. The child has resided with the grandparent requesting access to the child for at least six months within the twenty-four-month period preceding the filing of the petition.

Texas Family Code § 153.433 (Supp. 2001).

Although section 153.433 is cast in mandatory terms, it contains the condition that grandparental access must be in the child’s best interest; further, under section 153.002, the best interest of the child shall always be the court’s primary consideration in determining the issues of possession and access to the child.