What to do When Grandma Won't Give Your Child Back
As the African proverb wisely explains, "it takes a village to raise a child." From teachers and coaches to friends and siblings, an entire community of people must interact with a child so that they grow up in a safe and healthy environment. Usually, grandparents hold an honored and necessary role in that community. But things can take a turn if a custody dispute arises. Grandparents can take sides, decide that their grandchildren are better off with them, and even refuse to return the children to their parents after a visit. If this is happening to you, here's what you can do to get your child back safely.
Know That The Law Is On Your Side
In Texas, grandparents have to overcome many hurdles before the family court grants them the custody of their grandchildren. The first hurdle is simply getting into court. Before address the subject of custody, grandparents have to show that they have a right to sue in the first place. This right to sue is called standing.
To establish standing in a Texas family court, a grandparent must show that:
• Both parents are dead; or
• They've had actual care, control, and possession of their grandchild for at least 6 months and within 90 days of filing the suit; or
• They have lived with the child and the child's parent for at least 6 months and within 90 days of filing the suit and the parent has died; or
• Your child's legal guardian has agreed to let the grandparents have custody; or
• There is a significant risk of harm to the child's physical health or emotional development if the grandparent cannot sue for custody.
Even If They Can Sue, It's Still Hard For Grandparents To Get Custody
Even with standing, grandparents have a tough row to hoe when it comes to getting custody of a grandchild. Texas law presumes that a parent should always be given preference over a non-parent when it comes to children's custody. To overcome this presumption in court, a grandparent would have to prove that:
• You and your ex have voluntarily relinquished actual care, control, and possession of your children to their grandparent for a period of one year or more, a portion of which was within 90 days of the filing of the lawsuit and
• Awarding primary custody to the grandparent is in the best interest of the child.
To show that it's in the child's best interest, the grandparents would likely have to prove that the child's physical health or emotional development would suffer if one or both of their parents retains custody. Generally speaking, evidence that a grandparent is a better caretaker or of a parent's past substance abuse isn't enough to overcome that burden.
Don't Engage. Call The Police.
If the grandparents won't return your child, it's important not to address the situation alone. Tempers are already high, and things can escalate quickly even if you don't intend for that to happen. Instead, call the police for their assistance. Without paperwork demonstrating that the grandparent has the right to keep your child from you, the police will likely require the grandparent to return your child.
Consider Limiting Their Access To Your Child
If a grandparent refuses to return your child after a visit, you may want to consider limiting their access for safety reasons. Statutory law presumes that a parent is acting in their child's best interests when they deny a grandparent visitation. Similar to custody laws, even before attempting to overcome this presumption, a grandparent would have to prove that they have the standing to file a lawsuit against your decision.
If they clear the standing hurdle, courts will only order grandparent visitation if it's in the best interest of the child, and one of the following situations exist:
• The child's parents are divorced;
• The parents abused or neglected the child;
• A parent has been incarcerated, found incompetent, or died;
• A court terminated the relationship between the child and one of the parents; or
• The child has lived with the grandparent for at least six months.
This is the fifth article in our Unthinkable Series. We'll publish articles about some of the unique custody situations we've encountered in our practice with tips to help you overcome similar challenges during the series. Then we'll host a live Q&A session where you can get your custody questions answered in real-time later in the week. If you have questions about this series or would like to submit a question for our live Q&A, please contact our office here.