If a lawsuit is filed in which a parent and a grandparent are fighting for custody of a child, does the law presume that the parent should be given priority over the grandparent to have custody of the child? Of course, as with most things in the law, the answer is “it depends.”

One big factor is whether the lawsuit in question is an original lawsuit or a modification of a prior lawsuit. In an original lawsuit, the Texas Family Code provides that the law presumes that the appointment of a parent as a child’s managing conservator is in the child’s best interest. But again, as with most things in the law, that presumption can be overcome, if “the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” See Tex. Fam. Code § 153.131.

Additionally, Texas Family Code section 151.131 provides that “a finding of a history of family violence involving the parents of a child removes the presumption” that parents should be appointed as a child’s managing conservator.

So while an original lawsuit presumes parents should have custody, however, if the lawsuit is a modification of a prior lawsuit involving the child, the “parental presumption” no longer applies. In those cases, while the grandparent does not have to overcome the parental presumption, the grandparent seeking custody would still have to show that naming the grandparent as the child’s managing conservator would be in the child’s best interest and the circumstances have materially and substantially change since the date of the last court order.

There are other issues the court may consider, such as whether the grandparent has “standing” to file suit, but that is another topic for another day.

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