Can my mother-in-law fight me for custody?
by Lindsey Vanden Eykel
Although your mother-in-law may appear to be standing in all corners of your life, if she tries to fight you for custody of your children (*sigh* yes, her grandchildren), the court will probably tell her to sit down. Alas…you may finally have the upper-hand. (But, don’t get too excited. She may still be able to stand-up for longer than you had hoped.) Yes, there are times when grandparents should have custody of their grandchildren, but this article assumes that the facts entitling them to such (e.g., drugs and child abuse) do not exist. That being said, the question presented is three-fold: (1) can my mother-in-law even fight me for custody; (2) who determines if she can; and (3) and when will this determination be made? Briefly, yes she can. With regards to issues two and three, the answer becomes muddy: the court makes this decision (but courts differ with regards to when this determination is made during the suit).
Under Texas Family Code section 102.004(a)(1): your mother-in-law has standing to file a conservatorship suit only if the court finds that it is necessary because your child’s present circumstances (in your care) will significantly impair his or her physical health or emotional development. This requirement creates a steep hurdle for your mother-in-law to jump over before being allowed to disrupt you and your child’s life. Yet, despite this clear mandate, some trial courts have been adopting a new legal standard enabling grandparents to remain in the suit and deferring its ultimate decision on their standing until a final trial on the merits. So, your mother-in-law could stick around in the suit for longer than you had hoped (even if she fails to present evidence specifically demonstrating that the child’s physical health or emotional development would otherwise be harmed in your care). In a sense, this new standard is troubling, because it appears to loosen our grandparent standing statute by undermining the very purpose and policy for its creation. But, from another perspective, the Court has a vested interest in ensuring the safety of each child brought before it, which inevitably requires a thorough digest of all the facts. But, do not fret remember: the significant impairment standard (also coined the “fit-parent presumption”) is a high burden for your mother-in-law to satisfy. It operates under the presumption that you (as the parent) act in your child’s best interest. If you are adequately caring for your child, the court’s ability to interfere with your parenting is limited. The following chart outlines some of the cases in this area, which further highlight the fact that it is only in extreme circumstances that grandparents are to be granted standing:
Honestly, when I think about grandparent standing issues, I tend to think of the Hodor death scene in Game of Thrones. “Hodor”name of a character who is a gentle, giantis derived from the phrase “hold the door,” which becomes Hodor’s destiny as he saves Bran’s life by holding back the door of a cave thereby allowing Bran to escape from the White Walkers. Here, although we can also hold the door against your mother-in-law, the door does exist and provided extreme facts and circumstances she may be able to stand-up and walk through it.