The rules for grandparent custody and non-parent custody in Texas are somewhat the same. This is true even where the non-parents are not biologically related to the children. This is because generally any person that has had possession of the child for six months has standing to seek custody. Tex.Fam.Code § 102.003 (Vernon 2011).
However grandparents and some relatives are given special authority to seek custody. Grandparents may also seek custody if they are able to show that the children’s current environment would significantly impair the child’s physical health or emotional development. The most typical situations in which this standard is met is where there is abuse in the home or there is drug use such that the children are not being cared for.
Grandparents may also seek possession and access of grandchildren, however possession and access may be obtained only in limited circumstances — The grandparent’s child (the parent) is incarcerated, is found by a court to be incompetent, is deceased, or does not have actual or court ordered possession or access. Tex.Fam.Code § 153.433 (Vernon 2011). The logic for limited possession and access is parents are deemed to make decisions that are in the best interest of his or her children. Courts have ruled that the judiciary cannot interject their parenting style or parenting decisions by requiring that a parent allow a grandparent to have access. The only mechanism for a grandparent to have possession and access under the Family Code is, in essence, to show that their child’s ability to decide whether the grandparent should have access to the child is cut off.