Grandparents are allowed court ordered access to their grandchildren under limited circumstances. For all cases filed prior to September 1, 2013, Texas Family Code Sec. 153.433 permits grandparents possession of or access to his/her grandchild if:

  1. 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;
  2. The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being; and
  3. The grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:

has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
has been found by a court to be incompetent;
is dead; or
does not have actual or court-ordered possession of or access to the child.

Beginning September 1, 2013, the Texas Legislature has eliminated subsections 153.433(3)(a), (b), (c) and (d), meaning grandparents no longer have to prove those elements when requesting possession of or access to their grandchild.

This change allows for a greater number of grandparents to request the Court order possession of and access to their grandchild(ren) when a situation between the child’s biological parents and grandparents renders mutually-agreed possession of or access to the child unworkable. While this change makes it somewhat easier for grandparents to petition the Court for possession of and access to their grandchild, the grandparents must still prove “by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.” (emphasis added).

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