This article was written by Hance Law Group associate attorney Jonathan James and was republished by the State Bar of Texas here.
In the majority of my cases involving custody, both parents are involved and are the only ones in the dispute. Occasionally, though, I’ll encounter a situation in which a grandparent or another relative is seeking custody from both parents.
The first word of caution I give clients in these cases is that it’s difficult for a grandparent (or any other relative) to win and harder when there are two parents involved, regardless of their marital status. For the court to grant custody to a non-parent, the person seeking primary conservatorship must show that it is necessary for the child’s physical or emotional well-being, due to the impairment of the parents, to remove him or her from their care. For example, if both parents suffer from drug addiction and a child is at risk of physical or emotional harm in being with either parent, the court may grant custody to a relative.
While custody in and of itself might be difficult to secure, there is some recourse possible for a relative to step in that doesn’t require custody. Parents can authorize a blood relative to make decisions for their child that are typically reserved for them—the ability to make decisions about medical treatment, schooling, and extracurricular activities. These agreements can be signed out of court and can be drawn up when a parent feels that he or she can’t fulfill parental duties. For example, if a parent is battling drug addiction and has decided to go to rehab, he or she can designate a blood relative to function as the guardian while he or she is unable to fulfill the responsibilities.
While the parent can revoke the agreement at any time, it does allow relatives seeking custody the chance to serve as a parent to the child in the short term. It also could help in a custody case down the road, should it be necessary to demonstrate that the parent was willing to at least temporarily cede the rights and duties to a trusted relative concerned about a child’s welfare.
It’s important to note when we’re discussing custody, that there are really two halves to the term, and a lawsuit could result in one but not the other. One half of the custody equation is possession and access—or how much time the child spends with a particular parent or guardian. The other half refers to the rights and duties of a parent—in other words, the decision-making connected to a child’s health, education, and general welfare.
Even if a relative secures the rights and duties portion of custody, it’s still possible for one or both parents to be granted access to the child in a noncustodial parent role. While a judge in such a case will typically act in what he or she determines to be the best interest of the child, that view might not necessarily coincide with what the custody seeking relative deems to be the best interest of the child.
In these matters, it’s important to consult with a family lawyer at the outset, and the more information you can provide about the situation, the better. That will give your lawyer a sense of the options available and the best strategy to pursue.