I am a grandmother. How do I get custody of my kids from CPS?

Children may be removed from their home for a variety of reasons. For example, Children’s Protective Services (CPS) may remove children if they have determined their parents have neglected or abused them. Ideally, after the removal, CPS will be able to find a close family member to care for the child.

Recently on our legal forum a grandparent asked, “If my grandchildren have been taken into custody by CPS how do I get legal custody of them?”

Status of the children after removal

The grandparent did not specify whether the parent was seeking return of their child or whether they have been determined unfit so we will consider both options.

1. Parents want to eventually regain custody of the children.

If a child has been removed from a home there is generally a hearing within several weeks of the removal. At this hearing the court will determine where the children should live until they make a decision about the parent’s ability to care for the child.

If the grandparent wants custody while the case is pending and they are working with their son or daughter to help them eventually regain custody then they can testify on behalf of the parent but work with their own lawyer to provide evidence that they should have custody in the interim.

2. Grandparents want permanent custody of the children.

If you, as the grandparent, want to seek permanent custody of the children, however, you will have to file a lawsuit, referred to as an intervention.

Requirements for Awarding Custody to Grandparents

Courts have generally favored awarding custody to one or both parent over grandparents. With that said, there are times when the court decides that both parents are unfit to care for the child or they have abandoned the child and the grandparent are the best option for care.

State laws differ so this article will specifically address the options available in Texas. Review your state’s laws for more information. In the state of Texas grandparents may request a managing conservatorship which will give them custody of the child (if specific conditions are met).

What is a Managing Conservatorship?

Grandparents who request a managing conservatorship may be seeking custody, but they are also asking the court to allow them to make legal decisions about the child. To seek a managing conservatorship the grandparent must file a lawsuit or intervene in an on-going lawsuit.

The court will not consider granting their request or finding in the grandparent’s favor unless they can prove one of the following:

• The current living situation for the child is a physical or emotional danger to the child.
• The grandparent had actual control and possession of the child for six months and the end of the possession was less than 90 days prior to the filing of the original lawsuit.
• Both the child and the child’s parent lived with the grandparent for at least six months, and living arrangement ended 90 days prior to the filing of the original lawsuit.
• Both of the child’s parents have either filed a lawsuit for the grandparent to become the child’s managing conservator or they have agreed to it.

If the grandparent can prove that any of the above exists they may have the legal right to seek custody through a managing conservatorship.

Grandparents may also be able to intervene in an ongoing lawsuit if they have had a lot of past contact with the child and they can prove the child is being hurt because of the child's living conditions or by someone caring for the child.

Bottom line:

Grandparents may be able to request conservatorship or custody of a child who is in the custody of CPS but not until the courts consider the relationship of the parents with the child. It can be tough for some grandparents to get custody. In fact, grandparents must generally prove that both parents (if present) are unfit because courts are so strongly prejudiced in favor of parents rearing their own children.

Obviously, if CPS has determined that the parents are unfit or if the parents want the grandparents to rear their children then the courts are more likely to rule in favor of the grandparent.

As with all child custody arrangements, however, the court will always consider what they believe to be in the best interest of the child. Some states codify these factors while others do not.

Even if they are not codified, however, the court is likely to evaluate the following factors before formalizing any type of custody arrangement:

• The physical and emotional needs of the child
• The needs of the grandparents to care for the child
• The wishes of the parent(s) and the grandparent(s)
• The wishes of the child, the relationship between the grandparent(s) and grandchild
• Whether there is evidence of abuse by the parent
• The child's adjustment to the home, school, or community
• The distance between the child and the parent(s) or grandparent(s)

Talk to a family law attorney for more information about the steps you need to take to get custody of your grandchildren.