Child custody issues for grandparents and other non-parents in San Antonio, Bexar County, Texas

As a San Antonio, Bexar County, Texas child custody lawyer, I've been seeing a lot of child custody issues come up lately involving non-parents trying to get temporary or permanent custody of other people's children. 

Typically, a young mother and/or father, often with drug and alcohol abuse problems, leave their child(ren) with someone else.  Usually, the parent who does this is busy living a drug or alcohol abuse-induced lifestyle, with which raising a child generally interferes.  However, the 3rd party with whom the child was left (often a grandparent or other relative, but sometimes someone who has no blood relation to the child), sometimes finds it necessary to employ a child custody attorney when the biological parent shows up demanding the child.

In many cases, the parent never seeks to get the child back, but in a significant number of cases, one or both of biological parents wants to get their child back.  Sometimes, it is because the parent has truly straightened up his or her life.  In all too many cases, however, it is because the biological parent resents someone else raising the child.  As a child custody attorney in San Antonio, Texas (Bexar County), I am often consulted by biological parents trying to retrieve his or her child, and by 3rd parties who believe the child may come to harm if the biological parent regains possession of the child.

In the case of 3rd parties (non-parents) who are trying to keep possession of a child against the wishes of a biological parent, a number of issues generally arise.  Chief among those is the issue of "standing to sue."  This is a legal term of art which questions whether or not the non-party has a right to bring a legal action to gain temporary and/or permanent custody of a child.  Non-parents have the right to bring such a suit only under certain conditions. 

Usually, a non-parent in Texas may only file an original custody suit if the child has resided with the non-parent for more than six months.  However, a grandparent may file and maintain an original suit seeking custody of the child if the court is satisfied that the child's current living circumstances (with the biological parent) would significantly impair the child's physical health or emotional development, even if the child has not resided with the grandparents at all.  This statue is found in §102.004 of the Texas Family Code.  It is a very important statute, and one which I feel lets a number of children "fall through the cracks." 

For instance, consider the situation where the grandparents are either dead, unavailable, or unwilling to take possession of a child who has been left with another relative, and the biological parent demands the child back before the child has been with the other relative/non-parent for less than six months.  Texas law provides for no procedure for the non-parent to file an original suit seeking custody of the child, even if the biological parent is clearly a danger to the child.  In such circumstances, all the non-parent can do is call the police and the Department of Family and Protective Services (formerly Children's Protective Services, or CPS) if the biological parent shows up demanding possession of the child.  More often than not, the biological parent shows up with a police officer, so it is important for the non-parent to be able to tell the police that CPS has been notified, and to ask them to send a representative to the residence.

Unfortunately, CPS will usually decline to get involved unless the child is actually in the possession of the negligent or abusive parent, and will decline to take possession of the child unless they are certain the child is being neglected or abused.

This creates a huge crack for abused and neglected children to fall into.  If the non-parent holds onto a child against a biological parent's wishes, that non-parent could be subject to criminal kidnapping charges on the one hand, and has no legal right to seek legal custody of the child on the other hand. 

I am in hopes that this statute will be changed in the future to allow non-parents to protect a child in situations where Protective Services will not.  In the mean time, it is important for good-samaritan non-parents/non-grandparents to be aware of the law and to work closely with Children's Protective Services, at least until the child has resided with the non-parent for more than six months.

J. Michael Clay is a child-custody lawyer, divorce lawyer, family law attorney in Bexar County, San Antonio, Texas, whose law practice centers on family law issues such as divorce, child custody, child support, enforcement, modification and adoption issues. 

J. Michael Clay is licensed to practice law in all state courts in the state of Texas, and federal courts in the Western District of Texas. 

Not certified by the Texas Board of Legal Specialization.

Comments

[Darlene Garcia]

Here in san antonio texas can a 13 year old child divorce his biological parent?(Mother)

[Stephanie]

What happens when a grandparent that is not mentally fit tries to take custody of a child? What help does the parent have to fight?