Originally published by Robert Epstein.
Although it can be difficult, in certain circumstances, Texas family law may permit a grandparent to obtain custody even when a parent wants custody. In a recent case, a mother appealed an order giving the grandparents the exclusive right to determine a child’s primary residence.
In 2014, the trial court named the mother managing conservator of her 18-month-old son with the exclusive right to determine his primary residence. The mother and child lived in Lubbock for about a year, and then moved to live with the mother’s brother for about a year. After that, however, the mother and child moved multiple times. The mother dated men who had violent criminal histories. Child Protective Services opened an investigation and developed a safety plan. The child’s paternal grandparents petitioned for the exclusive right to determine the child’s primary residence, and the court granted the petition. The mother appealed.
The mother argued the trial court erred because the grandparents did not have standing to move for modification. She also argued the trial court abused its discretion when it found there was a material and substantial change in circumstances justifying a modification.
Pursuant to Texas Family Code § 102.004, a grandparent may seek managing conservatorship in certain limited situations. One of those situations is if the child’s current circumstances would significantly impair his or her physical health or emotional development. There is a presumption for parental custody, so it is not sufficient for a grandparent to show he or she would do better than the parent. The grandparent must show the parent’s conduct is likely to harm the child’s health or development.
According to the appeals court opinion, the mother admitted to moving at least seven times between the original order and the grandparents’ petition. She had stayed in at least five different shelters. The appeals court noted, however, that there was evidence she had moved the child at least nine times in eleven months. The appeals court also noted the mother did not own or lease any of the places she stayed, making the living situation even more unstable. Additionally, the child had stayed with two workers at the shelter for a period of time. The appeals court found the evidence supported an implied finding that the conditions of moving frequently significantly impaired the child’s health and development.
The appeals court also noted the mother had indicated she could not care for the children and had asked the grandparents in December, 2016 if they could take care of them. This was around the same time she had asked the shelter workers to care for the child. She testified she was not able to care for him then.
There was also evidence that, during the period between the original order and the grandparents’ petition, the mother had dated four men who had prior charges and findings of violence. The appeals court found the child’s repeated exposure to men with violent histories was relevant to determining whether his health and emotional development were impaired in his mother’s custody.
There was testimony the child had displayed behavioral issues while in his mother’s custody. The appeals court noted his behavior improved while he was with his grandparents.
In light of the evidence, the appeals court found the trial court did not err in finding the grandparents had standing.
The mother also argued there had not been a significant and material change since the original order. Generally, a trial court can only modify conservatorship if doing so would be in the child’s best interest and there has been a material and substantial change in circumstances. The appeals court noted that “frequent changes in the child’s home environment” has previously been found to constitute a material and substantial change in other cases. The appeals court also found the exposure of the child to multiple men with violent histories was a material and substantial change in circumstances.
The appeals court also noted that one of the reasons for the requirement of a material and substantial change is to preserve stability for the child. The appeals court found the modification supported stability for the child in this case.
The grandparents acknowledged, however, the trial court erred in finding the grandfather had standing to seek the modification. He was not the child’s biological grandfather, but was instead his step-grandfather. The appeals court modified the order to remove references to him, but otherwise affirmed the modification to grant the grandmother the right to determine the child’s primary residence.
In this case, the grandmother was granted custody even though the mother fought to retain custody. This case shows that it is possible for a grandparent to get custody if there is sufficient evidence the child’s physical health or emotional development would be significantly impaired if the child stays in the parent’s custody. If you are a grandparent seeking custody of your grandchild, you need a Texas custody attorney with extensive experience in family law matters. Call McClure Law Group at 214.692.8200 to schedule a consultation.