Extended families are common in our culture. Many of us have examples to draw from our own experience. Family members like grandparents, uncles, and aunts frequently provide childcare. Beyond providing childcare, these relatives perform an essential role in the lives of many children. Countless families see relatives step in and act as de-facto parents when mom and dad are unable to do so. It is no exaggeration to say that without extended families the children in our communities would not be the same.
However prevalent extended family relationships are that does not necessarily mean that the law treats parents and extended family the same. In Texas, parents hold certain rights and duties concerning children that extended families do not possess. It does not matter if an uncle or aunt has acted as the primary caregiver of a child for years. It is that child’s parents who possess the right to make decisions for the child under Texas law. Parents are also presumed to make decisions that are in the best interests of a child. This presumption does not exist for other persons.
If you are the aunt or uncle to a child and want to gain custody rights, then today’s blog post is for you. The Law Office of Bryan Fagan advocates for extended family in child custody circumstances on behalf of our clients. Today we will be discussing the ability of an uncle or aunt to win child custody rights in Texas.
What are the rights that uncles and aunts have concerning children?
The presumption that parents always act in the best interests of their children is a significant one. Parents are in the superior position compared to relatives when it comes to the daily life of a child. What a parent decides on behalf of a child carries with it a great amount of weight. While many of us second guess the decisions that a parent makes concerning their child, the law does not. Rather, the law makes a presumption that the parent acts in the best interest of that child.
This means that a parent can deny their child’s interaction with extended family. Unfortunately, as an uncle or aunt, your niece or nephew may be denied visitation with you by a parent. This is a heart-wrenching and difficult circumstance. It is also true that the law affords parents the right to make these decisions. Certainly, we can disagree with decisions like this. However, parents have the right to make these sorts of decisions for their children. Well-meaning extended family members About extended the same rights.
Only parents should be able to make important decisions like this on behalf of their children. If all persons were afforded the same access and presumption under the law that parents are given, you would create a messy and complex scenario for children. The parental presumption allows for clarity and decision-making regarding minor children. Parents are in the driver’s seat when it comes to making decisions on behalf of their children.
Where do uncles and aunts figure into this scenario?
This is not to say that extended family members like uncles and aunts lack any sort of rights when it comes to their nieces and nephews. Extended family members can ask for custody, visitation, or child support through a Texas family court. Additionally, there are limited circumstances where extended family members may intervene in a family law case that already exists. Learning the steps and methods behind doing so is important.
A SAPCR is a family law case where a person may ask a court to order visitation, possession, and child support rights. Frequently, suits affecting the parent-child relationship are filed by parents. However, there are circumstances under which an extended family member may also take advantage of this type of lawsuit. However, determining whether you can file and proceed with this type of case it’s a different matter altogether. It is not a given that you as an uncle or aunt can do this under the law.
With so many factors and circumstances flying around in an extended family law case, it is important to have good advice at your disposal. The attorneys with the Law Office of Bryan Fagan are here to help you and your family. Having your heart in the right place does not always guarantee you success in the world of Texas family law. Sometimes, it takes more than that. Our attorneys and staff are equipped to help you walk through the sometimes-rocky road of a family law case. A free-of-charge consultation with an experienced attorney is just a phone call away.
Determining standing in a family law case
As we mentioned a moment ago, not every adult has the legal ability to file a suit affecting the parent-child relationship. To have a court consider your lawsuit you must make sure you are in the correct position to do so. In other words, the court needs to determine whether you have standing to file this lawsuit. Standing is not something that every extended family member has concerning a child. Here is how you can determine whether you have the standing to proceed with a suit affecting the parent-child relationship.
In most circumstances, only a parent has the standing necessary to file a child custody case. There are limited situations under which you, as an uncle or aunt, have the standing sufficient to do so. First, consider whether you have had the actual care, control, and possession of the child for at least six months no more than 90 days before filing your child custody case. This is a high hurdle to clear. Not only do you need to have had physical possession of the child for an extended. But it must have been recently.
Next, an exception to this rule applies to uncles and aunts who have lived with the child and that child’s parent or guardian for at least the past six months. That six-month period must also have been within 90 days of the date that you filed your child custody suit. Additionally, that child’s parent or guardian must have passed away. This is an uncommon way for an uncle or aunt to gain standing in a child custody case. However, sometimes extended family members live with a parent who is sick we are not doing well physically.
Other scenarios where nonparents gain standing in child custody cases
Another situation where you may gain standing to bring a child custody case would be if you have been the foster parent to your niece or nephew. Foster parents, with whom children are placed by the Department of Family and Protective Services, gain standing once a child has been in your home for at least one year. As in the other circumstances, that one-year period of possession must have been within 90 days of filing the child custody case.
Finally, the great-grandparent, grandparent, sister, brother, aunt, or uncle gains standing when both of a child’s parents are deceased, parents are living but agree to the filing of the lawsuit, or if the child’s present circumstances will significantly harm the child’s physical health or emotional development. If you lack standing based on the child not living with you long enough, then this method of gaining standing would be your best route to pursue.
If you qualify for standing under one of these circumstances you would be able to file and pursue your child custody lawsuit. However, many of you reading this blog post may find yourself in a position where you do not quite meet the definitions for standing listed here. In a situation like that you need the advice of an experienced family law attorney. The Law Office of Bryan Fagan can help you analyze your situation to determine how likely success is for you in a child custody case.
Filing a suit affecting the parent-child relationship
A petition in Suit Affecting the Parent-Child Relationship will need to be filed with your local district or county court. The purpose of the petition is to tell hey court and the parents of a child the orders that you are requesting that the judge make in your case. Again, working with an experienced family law attorney helps a great deal in this regard. Filing the petition is one thing. However, it is a completely different matter to request appropriate orders which are geared towards the best interests of the child.
The child custody suit must be served upon each of the child’s parents. If a parent is deceased, you must provide the court with a copy of the parent’s death certificate. On the other hand, if a parent has had their parental rights terminated then you must provide the court a copy of the court order terminating the parental rights.
Any other conservator of the child must also be named as a respondent in your child custody lawsuit. The petition in the Suit Affecting the Parent-Child Relationship allows you to ask the court for certain rights and duties. Other requests regarding visitation and possession may also be made. It would also be common to ask for child support to help you raise the child effectively. After the child custody case, the court can sign orders which are in the best interests of the child.
The role of a respondent-parent in a child custody suit filed by an uncle or aunt
A parent of the child would act as a respondent in this lawsuit. The respondent in a civil lawsuit is the party who has the burden to respond to the initial petition. An original answer would be filed by the parent. Or a parent may choose to waive their right to be personally served with the lawsuit. This is frequently done in circumstances where the parent agrees to you filing a child custody lawsuit.
When a parent agrees to you filing the child custody lawsuit, he or she may sign a completed order in a suit affecting the parent-child relationship. Even in an agreed or uncontested child custody case, you would still need to go to court. Your attorney would set the case for a hearing on the uncontested docket for that court. Depending upon the involvement of the office of the attorney general you may be able to immediately go to court to present your proposed orders to the judge.
Conducting yourself in a child custody hearing
If you choose to represent yourself in a child custody case involving your niece or nephew it is important to be organized for your hearing. File stamped copies of your child custody petition, answers filed by the child’s parents and an order in the suit affecting the parent-child relationship all need to be taken to court. The order should be signed by you and both of the child’s parents. Child support documents such as an income withholding order should be taken to court, if necessary.
The judge in a child custody case will ask you to tell him about your relationship with the child and who you are.
Legal guardianship of a child
if gaining custody of your niece or nephew is not an option, then guardianship is the second choice for you to pursue. Guardianship is the process that involves protecting a child from abuse or neglect. A guardian cares for the child and looks over his or her finances. The process to begin a guardianship case is straightforward. First, file an application for guardianship with your local probate court. Next, attend a hearing where arguments and information can be provided to the judge.
A court would likely need to pursue testing and evaluations of your suitability as a guardian. A guardianship is not an explicitly family law-related case. However, there are many family law elements within a guardianship case. It is not a given that your niece or nephew needs a guardian. He or she has a parent who has the legal responsibility to care for the child.
Grandparents’ rights in Texas
When it comes to child custody cases in Texas, grandparents find themselves in a similar position as aunts and uncles. Grandparents can file lawsuits to try and win visitation and custody of their grandchildren. However, grandparents also face a stiff burden to prove that it is in their grandchild’s best interest that they be named as conservators.
As a grandparent, you would need to provide evidence that proves that your grandchild is in danger when you file your case. This is not a situation where you can show that your grandchild was in danger years ago. By the same token, it is insufficient to try and prove that your grandchild will be in danger if not granted the relief you seek in the case. Circumstances that involve drugs, alcohol, or a parent being in jail for a grandparent are the type of facts that are needed to win custody or visitation.
Importantly, you are only legally a grandparent when your child has parental rights. This means that if your child has had their parental rights terminated you are not able to proceed with a grandparent’s custody case.
Time is of the essence in a child custody case for extended family
Making decisions in an efficient a timely manner is critical when it comes to a child custody case. We have seen that being able to move forward with the case depends in large part on when your niece, nephew, or grandchild was in your physical possession. Waiting too long to file a custody case means potentially losing the ability to pursue custody on your behalf.
At the same time, you do not want to move forward in a case too quickly. It is easy to make mistakes in a case like this. Also, there are complex factual circumstances that need to be analyzed before going through with the time and expense of a child custody case. As such, working with an experienced family law attorney is very important to the success that you have in a case.
The attorneys with the Law Office of Bryan Fagan thank you for joining us in today’s blog post. We offer free-of-charge consultations six days a week in person, over the phone and via video. Additionally, our attorneys post unique and informative blogs each day of the week. Whether you are an aunt, uncle, or grandparent the attorneys with our office are equipped to help you in a child custody circumstance.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
