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How can I get custody of my grandchild her mother my daughter is deceased and the alleged father has custody of her.

San Antonio, TX |

The alleged father has a history of family violence and was abusive to my daughter and could possibly be charged with her death. My grandchild is in the custody of him and his mother where they live with the mothers spouse (step parent to the alleged father) a registered sex offender. They petitioned the court for paternity his name isn't on the birth certificate and we don't believe he signed an AOP. I would like to fight for custody of my granddaughter. The baby girl is only a month old...my daughter died last month. I don't believe there has been a paternity test conducted.

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Attorney answers 6

Best Answer
Posted

"Standing" means having the right to file an initial suit. You probably don't have standing (unless an attorney down there can help you establish standing under Texas Family Code 102.004). However, because the suit has already been filed, you can intervene in the suit.

If you can prove to the judge that the child's present living situation will almost definitely result in severe harm to the child's physical safety or emotional development AND that living with you is the best alternative, you can win.

You should know that these cases are extremely difficult to win. The U.S. Supreme Court and the Texas Legislature have made it more difficult than you can imagine for third-parties in general and grandparents in particular. Your ability to prevail is very fact dependent and we'd need many more facts than you can give on a site like AVVO in order to let you know your odds of prevailing.

I understand that folks come to web sites like this to get advice without having to pay an attorney, but some cases are so complicated that you just have to sit down with a GOOD family law LITIGATOR, pour out all the facts and how you can prove them, and get advice carefully tailored to your case.

Good luck!!

Asker

Posted

Thank you we plan on acting we just need to find the best family law litigator in the San Antonio area. Can't we file a suit to establish paternity since they weren't married and we just found out he's actually married to someone and has been for years.

Dorothea Elaine Laster

Dorothea Elaine Laster

Posted

You file suit requesting custody. You have no need to establish his paternity--no you would not file that. You would intervene in the pending AG action as you have been advised to do.

Posted

Consult with an attorney in person. Grandparent standing (right to sue) is pretty limited. You'll need to discuss it at greater depth than is possible here.

This answer DOES NOT establish an attorney-client relationship. This answer is based on the limited information provided and is not intended to be conclusive advice. There are likely other factors that might influence or change the advice after a more lengthy consultation.

Posted

I am so sorry for your loss. As Ms. Lowery stated, grandparent rights are limited. Under the circumstances you described, you must act quickly and consult with an experienced family law attorney this week.
How did your granddaughter end up with the alleged father? .

Asker

Posted

The evening she died he was the only one in the home with her besides the infant child our family asked one of the police officers if we could take the child and he said the alleged father could take her without any documentation proving he in fact is the father.

Posted

You need to intervene in the paternity suit NOW. There are specific grounds for termination of his rights if he caused the death of the other parent. I am sorry for your loss.

This does not establish an attorney/client relationship. Dallas, Denton, Collin and Tarrant County, Texas practice area. Principal office located in Lake Dallas, Texas.

Dorothea Elaine Laster

Dorothea Elaine Laster

Posted

It would appear to me that you would have standing under 102.004: "§ 102.004. Standing For Grandparent Or Other Person (ak2) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that: (1) the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. (b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development." If you had "substantial past contact" with the child you may alternatively pursue adoption. (I know the child is only a month old). See 102.005. Get CPS involved, if they remove the child from the father they can place the child with you.

Posted

Get an attorney immediately and file suit just as your daughter would have done. You cannot wait on something like this. At the very least you should seek visitation rights.

Posted

Find yourself a good family law attorney.

I am not your attorney until you hire me and pay a retainer.

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