Grandparents suing for custody

[Gamdu]

What is the name of your state (only U.S. law)? Texas

Its such a long story, I'm not sure where to begin. I will try to be as concise as possible.

I am a divorced father of two girls, age 2 and 5. I have majority possession and I receive child support from their mother. Until recently, I was living with my parents for about a year with my children.

Last month I made a trip out of state to visit my girlfriend, and asked my parents to watch the kids while I was away. My parents agreed, but when I came home they became suspicious that I was going to move out of state with my children.

My girlfriend and I have broken up, and I have told my parents I do not intend to move away, but they are trying to get me to sign papers that give them primary joint managing conservator status. They showed me the paper they wanted me to sign a couple weeks ago. It gives them primary custody, awards no child support, they decide visitation, and determine the primary residency of the children. My parents offered to give me $5,000 if I signed the paper.

I refused to sign it and asked them to assist me in getting on my feet, so I could move out with my children. They responded by kicking me out of their house. I had nowhere to go except a hotel room, so I left my children in their care.

I am dating my exwife again, and I have moved into her apartment. We have begun fixing her place up so that we can move the kids in with us, but today we were served with papers. My parents are suing me for primary custody of my children.

Without telling myself or my exwife, my parents filed on October 22 this year for Emergency Relief, which gives them temporary joint managing conservatorship. They have the exclusive right to determine primary residence of the chidren now, and it prohibits me, their father, from picking them up from school or daycare, or taking them from my parents house, and I cannot have possession of or access to the children until the hearing. MY PARENTS WERE GRANTED A RESTRAINING ORDER SO I CANNOT SEE MY KIDS BECAUSE I WAS NOT TOLD TO APPEAR IN COURT ON 3 NOVEMBER.

I called my mom, and she said that the court order was not in effect until this morning, because she had not given the papers to my kids school yet and I had not been served. But now that I was served, she has given the papers to my kids school. I had been picking the kids up and dropping them off with my parents most days, but now I guess I cant? How can the court just grant this to them without telling me? I wasn't told by anyone to appear in court, I have primary custody of my kids, but now I'm restrained from even seeing them?? That makes no sense to me. How can a court do that?

The papers I got today say my parents are filing for an extension of emergency relief. Although the papers say I have 20 days to respond, the court hearing is set for December 3rd. Which is THREE DAYS FROM NOW.

I cannot afford an attourney until my next paycheck on the 15th, and I really do not know what to do at all.

Like I said before, I was planning to move my children in with me around december 15, and I was going to let my parents take the kids when they wanted them, probably on the weekends, but now I dont know if I even want my parents involved with my kids at all, ever. I cant believe they did this behind my back. I thought they were trying to help me.

The hearing scheduled for December 3rd is to determine whether:

1. The preceding emergency relief granted should be made a temporary order of this court.

2. The court should appoint petitioners (my parents) temporary joint managing conservators, and desginating the peitioners as the conservitors who has the exclusive right to designate the primary residence of teh children.

3. The court should order respondents to pay child support, health insurance premiums, etc

4. Court should establish periods of visitation for myself and my exwife

5. The court should grant petitioners teh right of first refusal to care for the children at all times that either me or my exwife will be away form the children for 2 hours.

-=-=-

My parents are also asking that my exwife and I pay for their court fees, pay them child support until the children are 18, etc etc

It says that I had exclusive right to designate resience of children but I "voluntarily relinquished the primary care and possession of the children to my parents for at least 6 months."

Basically my parents think I'm going to run off with my kids out of state, and they are suing me to make sure it doesnt happen. I want to know what to do? I cant hire an attorney until after this hearing because I dont have the money for it and its only 3 days away and I just found out about it and according to this paper I am not allowed to even see my kids anymore.

How could this happen? How can the courts make a ruling like that? How can my parents not tell me what they are doing when they see me every day???

Sorry for getting emotional in this letter, I try to just put the facts in but as u can see I am very upset.

Please tell me any questions you have, and I very much appreciate your help in this matter.

 

[Zephyr]

You HAVE to show up to the hearing...you might want to research motion to dismiss

 

[Isis1]

OP, how long were you out of state visiting your girlfriend?

you AND your ex-wife need to be at that hearing.

 

[Gamdu]

I was gone for about 2 weeks.

 

[Isis1]

I was gone for about 2 weeks.

then if definitely doesn't matter.

like stated, look into getting a motion to dismiss. make sure you and your ex wife are present.

did grandma makng any accusations such as drug use? criminal activity? cps involvement?

i'm a bit appalled this was done on an emergency basis with no emergency.

 

[Gamdu]

then if definitely doesn't matter.

like stated, look into getting a motion to dismiss. make sure you and your ex wife are present.

did grandma makng any accusations such as drug use? criminal activity? cps involvement?

i'm a bit appalled this was done on an emergency basis with no emergency.

The emergency is that they dont want me to take the kids out of state. Their excuse for asking for primary guardianship is that they wanted to put the kids on their health insurance. We don't qualify for medicaid while the kids are living in their house, because they have a six figure income. My dadd said he was really worried about if the kids get sick.

I don't think that's their official reason but that's why they're doing it. the official reason, which I have a copy of their statement to the court is this:

(my stepdad) is concerned and fearful that I may try to take the children. It says I have no job or residence established in the state I went to visit, and if I take the children it may endanger their health and safety or impair their emotional development.

It says that my exwife is pregnant again, and she is diagnosed with depression, and she has issues with her sleeping and her medication has led to car collisions and missed work.

It says they are working with my exwife to facilitate a safe environment for the children, but she is not able to care for the children on a part time basis even.

It says both myself and my exwife's conduct causes serious concern for the safety and welfare of teh children, and based on recent events they are requesting possession and access between the father (me) and the children be suspended and if I were to leave with them, he fears the children will be damaged emotionally and physically.

It also says we are unable to provide health insurance for the kids, which is true because they reside with my wealthy parents. If the kids move in with myself and my exwife we will be able to qualify for medicaid.

There is no drug use, and no criminal activity, and no abuse, although grandma has repeatedly defied me when I tell her not to spank my children. Maybe I can use that against her?

 

[ecmst12]

Your parents have NO standing to assume custody or prevent you from taking the children out of state if you want to and mom doesn't object (even though you weren't planning on doing that, you COULD). It's a frivilous motion and you should get a lawyer and make sure you ask for them to pay your legal fees for dragging you and your children into court because THEY don't know their proper place.

 

[Isis1]

The emergency is that they dont want me to take the kids out of state.

legally, that's not an emergency.

Their excuse for asking for primary guardianship is that they wanted to put the kids on their health insurance.

that's not a good reason. however, i do have a question. are either of you working?

We don't qualify for medicaid while the kids are living in their house, because they have a six figure income. My dadd said he was really worried about if the kids get sick.

this isn't how you go about getting health insurance for children.

I don't think that's their official reason but that's why they're doing it. the official reason, which I have a copy of their statement to the court is this:

(my stepdad) is concerned and fearful that I may try to take the children. It says I have no job or residence established in the state I went to visit, and if I take the children it may endanger their health and safety or impair their emotional development.

okay. stepdad has no legal dog in this fight. how have the children been medically neglected? are they receiving medical care? immunizations?

It says that my exwife is pregnant again, and she is diagnosed with depression, and she has issues with her sleeping and her medication has led to car collisions and missed work.

is she pregnant? was she diagnoses with depression? what issues does she have? is she driving while medicated? was she in car collisions?

It says they are working with my exwife to facilitate a safe environment for the children, but she is not able to care for the children on a part time basis even.

is that true? is she in cahoots with them?

It says both myself and my exwife's conduct causes serious concern for the safety and welfare of teh children, and based on recent events they are requesting possession and access between the father (me) and the children be suspended and if I were to leave with them, he fears the children will be damaged emotionally and physically.

who filed this motion? the stepfather? what recent events?

It also says we are unable to provide health insurance for the kids, which is true because they reside with my wealthy parents. If the kids move in with myself and my exwife we will be able to qualify for medicaid.

instead of being on state aid, why can neither one of you get full time employment that offers insurance? or pay for a medical plan individually?

There is no drug use, and no criminal activity, and no abuse, although grandma has repeatedly defied me when I tell her not to spank my children. Maybe I can use that against her?

if grandma is applying corporal punishment without your permission, why have you not reported it to social services when it occured? doing so now, only implies legal retaliation. not best interest of the children.

 

[Gamdu]

I am looking for a job, but my exwife is working full time, including a lot of over time. Her work does not give full health benefits.

okay. stepdad has no legal dog in this fight. how have the children been medically neglected? are they receiving medical care? immunizations?

My parents have taken care of most of this. grandma is very paranoid about sickness and the kids visit a doctor every time they cough twice. Immunizations and everything are up to date. I accepted her assistance, because I thought she was helping as an act of love, and its very difficult to argue with her about these subjects. If my mom wants the kids to go to a doctor THEYRE GOING. It's either that or get in an argument, so I save the arguments for the real issues, like spankings.

is she pregnant? was she diagnoses with depression? what issues does she have? is she driving while medicated? was she in car collisions?

Yes she's pregnant, but she was never treated for depression. She has hypothyroidism which effects her moods. She did have a car accident once when she fell asleep at the wheel on her way to work a couple months ago.

My exwife is not in "cahoots" with my parents exactly, but until this morning I believed we were all of us on the same team... so we've been very honest with my parents over everything. I hope that makes sense.

who filed this motion? the stepfather? what recent events?

Stepfather and my mother together. they both made statements to the court in november while pretending that they tried to subpoena me and my exwife. But they never said anything to us or sent us anything.

instead of being on state aid, why can neither one of you get full time employment that offers insurance? or pay for a medical plan individually?

We struggle to pay our bills, and my exwife's work doesnt offer real insurance.

if grandma is applying corporal punishment without your permission, why have you not reported it to social services when it occured? doing so now, only implies legal retaliation. not best interest of the children.

My mom promised many times that she would never do it again. She says she's sorry, and its an old habit, and she just does it out of instinct, and she says she'll never do it again every time I catch her. The last time I caught her doing it, I wrote her an email and said that the next time she strikes one of my children she will answer to the police. I have not caught her hitting them since then. It is the ONLY thing I insist upon when it comes to the care of my children, and it drives me insane that she can't follow it.

 

[Isis1]

I am looking for a job, but my exwife is working full time, including a lot of over time. Her work does not give full health benefits.



My parents have taken care of most of this. grandma is very paranoid about sickness and the kids visit a doctor every time they cough twice. Immunizations and everything are up to date. I accepted her assistance, because I thought she was helping as an act of love, and its very difficult to argue with her about these subjects. If my mom wants the kids to go to a doctor THEYRE GOING. It's either that or get in an argument, so I save the arguments for the real issues, like spankings.




Yes she's pregnant, but she was never treated for depression. She has hypothyroidism which effects her moods. She did have a car accident once when she fell asleep at the wheel on her way to work a couple months ago.

My exwife is not in "cahoots" with my parents exactly, but until this morning I believed we were all of us on the same team... so we've been very honest with my parents over everything. I hope that makes sense.


Stepfather and my mother together. they both made statements to the court in november while pretending that they tried to subpoena me and my exwife. But they never said anything to us or sent us anything.



We struggle to pay our bills, and my exwife's work doesnt offer real insurance.




My mom promised many times that she would never do it again. She says she's sorry, and its an old habit, and she just does it out of instinct, and she says she'll never do it again every time I catch her. The last time I caught her doing it, I wrote her an email and said that the next time she strikes one of my children she will answer to the police. I have not caught her hitting them since then. It is the ONLY thing I insist upon when it comes to the care of my children, and it drives me insane that she can't follow it.

all right. here's the problem. if you REALLY were concerned, you would have just came, got your kids, and told granny to stuff it. but you didn't. you allowed it to continue. can't use that arguement. if you really cared, you would have done something that instant.

however, nothing you stated, says the kids are in danger. grandma and stepgrandpa need to prove you unfit.

really, right now, what is stopping you from getting your kids (i'm not talking about the restraining order)?

 

[Ronin]

The papers I got today say my parents are filing for an extension of emergency relief. Although the papers say I have 20 days to respond, the court hearing is set for December 3rd. Which is THREE DAYS FROM NOW.

For now, your number one priority should be for both you and your ex-wife to show up at the hearing on Thursday, even if you do not have an attorney.

Your ex-wife is also required to be served separately from you. If your ex-wife has not been served, then the hearing on Thursday will have to be postponed if you show up and request this based upon TRCP 21. Texas Rules of Civil Procedure 21 requires a minimum of three days notice to all parties prior to a hearing.

At this point, since the grandparents are filing for an extension of an emergency order without proper service, and if the order is now expiring, you can argue the request for extension of the emergency order should be dismissed.

To support your request for dismissal and to assert your rights as a parent to possessory conservatorship of your children, refer to the below:

Texas Family Code Chapter 102.004(a) gives standing for a grandparent to file an original suit requesting managing conservatorship. However, this statute requires the grandparents establish it is necessary because the present circumstances would significantly impair the child's physical health or emotional development. This is not nearly as easy as it might appear.

For this to occur, the court must first determine that the grandparents have shown by a preponderance of the evidence that the children are in imminent danger of physical or emotional harm in re R.D.Y., 51 S.W.3d 314, 325(TexApp--Houston[1st Dist]2001 no pet.).

Although the statute allows grandparents standing to file suit requesting managing conservatorship, per FAM 102.004(b) grandparents MAY NOT file suit requesting possessory conservatorship.

Given this, and from what you have stated so far, the grandparents have no legal standing or basis to take possessory conservatorship of the children away from you.

If you and your ex-wife argue the above statute and case law at the next hearing, you should be able to hands down retain possessory conservatorship of your children and the right to determine where they live.

 

[Gamdu]

all right. here's the problem. if you REALLY were concerned, you would have just came, got your kids, and told granny to stuff it. but you didn't. you allowed it to continue. can't use that arguement. if you really cared, you would have done something that instant.

however, nothing you stated, says the kids are in danger. grandma and stepgrandpa need to prove you unfit.

really, right now, what is stopping you from getting your kids (i'm not talking about the restraining order)?

I was preparing to move my kids to join me in this apartment before this lawsuit happened. What stopped me before? It was easier with my parents help, and I was alone. My stepdad said to me that he wanted nothing else in the world but to help me get on my feet and take care of my kids. He said he would love to step back and just be grandpa when I was ready.

He promised me, when he handed me the paper to sign. He said when I was ready to take my kids he wouldn't try to stop me. I told him I wanted the kids to live with me, but when I came home from my trip, he wouldn't allow me back in his house.

I asked him to care for my children until January at the latest and I would be ready to take them, and I promised him that I would not move out of state.

He tried to tell me he didn't understand the document he gave me because it was written in "lawyer" language, but if I had questions he would make his lawyer fix them. I know what the document meant, and I know exactly which lines he insisted his lawyer put into it.

So when I refused his money, and refused to sign the paper he gave me, he had me served with a much more nasty document than the one he wanted me to sign before.

I thought my parents were trying to help. This breaks my heart.

 

[Gamdu]

For now, your number one priority should be for both you and your ex-wife to show up at the hearing on Thursday, even if you do not have an attorney.

Your ex-wife is also required to be served separately from you. If your ex-wife has not been served, then the hearing on Thursday will have to be postponed if you show up and request this based upon TRCP 21. Texas Rules of Civil Procedure 21 requires a minimum of three days notice to all parties prior to a hearing.

At this point, since the grandparents are filing for an extension of an emergency order without proper service, and if the order is now expiring, you can argue the request for extension of the emergency order should be dismissed.

To support your request for dismissal and to assert your rights as a parent to possessory conservatorship of your children, refer to the below:

Texas Family Code Chapter 102.004(a) gives standing for a grandparent to file an original suit requesting managing conservatorship. However, this statute requires the grandparents establish it is necessary because the present circumstances would significantly impair the child's physical health or emotional development. This is not nearly as easy as it might appear.

For this to occur, the court must first determine that the grandparents have shown by a preponderance of the evidence that the children are in imminent danger of physical or emotional harm in re R.D.Y., 51 S.W.3d 314, 325(TexApp--Houston[1st Dist]2001 no pet.).

Although the statute allows grandparents standing to file suit requesting managing conservatorship, per FAM 102.004(b) grandparents MAY NOT file suit requesting possessory conservatorship.

Given this, and from what you have stated so far, the grandparents have no legal standing or basis to take possessory conservatorship of the children away from you.

If you and your ex-wife argue the above statute and case law at the next hearing, you should be able to hands down retain possessory conservatorship of your children and the right to determine where they live.

We were both served at the same time by the same person. I could have stayed hidden from the door, but I chose to accept the papers when my exwife answered.

Thank you so much for this post Ronin. I feel much more capable of handling this hearing now, even if we cannot find a lawyer in time.

I would like to ask one more question, if I may. How could my parents show "by a preponderance of the evidence that the children are in imminent danger of physical or emotional harm"?

Could you give me some examples?

 

[Ronin]

I would like to ask one more question, if I may. How could my parents show "by a preponderance of the evidence that the children are in imminent danger of physical or emotional harm"?

Review everything that was alleged in the papers you were served and which were filed in court to support the request for emergency orders. Be prepared with a reasonable response to all of these allegations.

Legally, the burden is not on you or your ex-wife to prove you are a good parents, but for the grandparents to try to prove you are both not. The legal presumption is that at the time of the divorce and rendition of the custody orders, you and your ex were fit parents, which is why the court appointed you both conservators of the children. The legal presumption is that you are still fit parents.

Ask the judge to dismiss the case if they cannot show there is more evidence than not that the children are in any real danger.

Even if you cannot get the case dismissed and they wish to file for managing conservatorship, the grandparents still do not have a right to file suit for possessory conservatorship. Which is exactly what they are trying to do.

And making that point should be your primary goal at the next hearing.

 

[Gamdu]

Ronin, I cannot thank you enough. I will set to work on this immediately.

This next question is probably irrelevant to what lies ahead, but I'll ask it anyway, because it upsets me so much.

On October 22, my parents were issued an order on application for emergency relief, and a hearing was set for november 5. The court decided good cause exists because petitioners have not been able to personally serve respondents.

The petitioners were my parents, and I saw my kids and my parents every day between October 31 (halloween) and November 5.

How could my parents claim that they werent able to personally serve myself or my exwife? How could the court grant this document to them so I am not allowed contact with my children when I am majority joint managing conservator? Nobody tried to contact me! Was something mailed to my parents house? Did they hide the letter from me? Did they have someone knock on my exwife's apartment door when they knew she was at work?

Are my parents really that nasty?