My estranged wife wants to know if her children can petition the court
to live with their grandmother and not with her.

Here's the "Readers Digest" version:

She has an alcohol problem, and is currently in her second round of
rehab in three years. Both rehabs were voluntary and she has no drug
or alcohol related incidents (legal, etc). Her mother is a rather
wealthy woman, and has controlled what her daughter has done for all
of her life (47 years). Her children are aged 16 and 13. Her mother is
very manipulative, and I'm sure has convinced the kids that "mommy" is
a bad person because she drinks.

The kids have told her that they do not want to live with her, and
have refused to even contact or allow contact with her while she is in
rehab. The children have chosen to live with their grandmother, while
their mom is in rehab, and have indicated that they want to stay with
her even after she has completed her treatment.

There has been no violence/mistreatment/etc associated with her
behavior. The only side affect that I noticed with her is some
financial irresponsibility (her mother pays her bills).

Can the children "choose" who they want to live with, and does their
mother have any say in the matter? The state that this would take
place is Texas.

I would think that the court would give first preference to the
children's mother. I would also think that the children, being minors,
would not be allowed to make that decision (I could see there being a
difference if it was a mother vs father issue, but this is a mother vs
grandmother issue).

I know G**GLE answers doesn't provide "legal advice", so no need to
cut and paste the disclaimer in a response, just looking for a few
well informed opinions.

Thanks.

---

Request for Question Clarification by tutuzdad-ga on 26 Aug 2005 13:00 PDT

When you says this woman is your "estranged wife" do you mean you are
legally divorced, still legally married, or what?

Are "her" children also YOUR children?

tutuzdad-ga

---

Clarification of Question by cvenom-ga on 26 Aug 2005 13:24 PDT

We have been in the process of a divorce for about 2 1/2 years, So we
are still married but have been living apart (different states) for
that entire time. The children are hers from a different marraige, and
I never adopted them.

Dear cvenom-ga;

Thank you for allowing me to answer your interesting question.

What actually would have to take place is for THE GRANDMOTHER, as the
blood relative seeking custody of the children, (or other person in
authority) to petition the court on behalf of the children?s expressed
desire to live with her and not their mother. From what you have
shared with us, she might base her complaint on their mother?s
incompetence and negligence (at finances, love, nurturing, emotional
support, etc), on their mother?s addiction and numerous failed
attempts at professional recovery, and so forth. Basically the
grandmother would have to go to court prepared to prove that your
?estranged wife? is an unfit parent, or at the very least a danger to
the children and/or herself, or deficient to the point that she is
negligent in her duties and responsibilities as a parent.

According to Beverly J. Greely, a Houston Attorney who specializes in
such matters, a grandparent does have the ability to obtain custody
from a jurisdictional court under the right circumstances:

??a grandparent may request custody of a grandchild if they have had
actual care, control, and possession of the child for not less than
six months preceding the filing of their petition for custody (a suit
affecting parent-child relationship) or if it can be shown that
custody is necessary because the child's present environment presents
a serious question concerning the child's physical health or welfare;
or the parents, surviving parent, or the managing conservator files
the petition or consents to the grandparents having custody.?
BEVERLY J. GREELY, ATTORNEY AT LAW
http://www.bjgreely.com/grandparents.htm#2GRANDPARENT

Beverly J. Greely, Attorney at Law
1235 North Loop West, Suite 919
Houston, Texas 
77008

Telephone (713) 880-5151
Email: bjgreely@pdq.net
Web: http://www.bjgreely.com

Otherwise, under Texas state statutes, grandparent may file for
visitation and regular access to their grandchildren if certain
conditions are present:

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE 
PARENT-CHILD RELATIONSHIP

SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP

CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS

SUBCHAPTER A. GENERAL PROVISIONS
http://www.capitol.state.tx.us/statutes/docs/FA/content/htm/fa.005.00.000153.00.htm#153.431.00

This is not a sole custodial situation but in lieu of being granted
custody may serve as an excellent alternative to provide the children
with some relief by keeping the children with her, and away from their
mother, at least some of the time.

You want to avoid confusing this situation with custody granted
through divorce, and custody issues as they pertain to the welfare of
the children (especially in a substantially different environment that
it was when the court originally granted custody). A child that is in
an unhealthy (physically, emotionally, financially, spiritually, etc)
environment has A RIGHT to expect protection. This is why, in many
states, police officer, doctors and teachers (among others perhaps,
depending on each location) are given the authority to remove children
from dangerous environments IMMEDIATELY AND WITHOUT A COURT ORDER if
they see that child is in immediate danger. As a rule children cannot
make their own decision about who their custodial parent is without
good reason and court approval. On the other hand a court might very
well find in their favor if they were to pursue it based on what you
have told us here.

I highly recommend you have a chat with a knowledgeable attorney about
your concerns. Normally this doesn?t cost anything and can frequently
be done as a matter of a courtesy telephone consultation. As you might
imagine, this situation can quickly evolve into something that is
extremely ugly and such a controversy can have a lifelong impact on
how the children relate to their mother and others for the remainder
of their lives.

As you saidk, we cannot provide legal advice, and I appreciate your
recognition of that fact. I will however offer you this advice, as a
parent and law enforcement profesional myself: Tread very carefully.
The decisions made today with regard to this delicate situation can
make a difference for a lifetime.

I really do wish you luck.

I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.

Best regards;
Tutuzdad-ga ? Google Answers Researcher



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Excellent answer! It sounds like the kids can't make the decision on
their own, but grandma can do so if she wants to persue it. That was
pretty much what I expected, but it would be interesting to see how
the courts rule on similar cases.
Thanks, I'll be posting another question for you soon.