Families take many shapes and forms in today’s world. In instances where biological parents are out of the picture or pose a physical or emotional threat to a child, other family members may want to step up and care for that child. While it isn’t unusual for grandparents to seek temporary possession or permanent custody of a grandchild, we occasionally see siblings make similar requests. If you’re wondering how to get custody of a sibling in Texas, you’ll find insight on the requirements and some important steps below.
When can an older sibling fight for custody in Texas?
While rare, sibling custody cases do come up in the Texas family courts. If the question of how to become legal guardian of sibling is on your mind, you should consider the value the state places on the relationship between parent and child.
First and foremost, the state of Texas believes children should have a relationship with both biological parents whenever possible—it presumes the biological parent having custody is in the best interest of the child. The state is reluctant to restrict or terminate a biological parent’s parental rights unless that parent poses a danger to the child, has committed family violence, is incarcerated, voluntarily relinquishes parental rights or has abandoned the child for an extended period of time.
Even if a parent has had issues with drugs or alcohol, the courts generally view rehabilitation as a realistic option. While the courts may restrict access to a child in the meantime, the hope is that the parent will turn their life around and be a good parent following treatment. If all goes well, that parent will likely regain more access to their child over time.
When the biological parents are still alive, it tends to be more challenging to successfully navigate how to gain guardianship of a sibling. On the other hand, you’ll generally face fewer hurdles in gaining custody of a sibling when both parents are deceased.
On a side note, if you’re reading this article and have children of your own, we can’t stress enough how important it is to have a will with directives stating what will happen to your kids in case you die. While custody directives in wills aren’t mandatory, the courts strongly consider them in the event of a parent’s death.
How to get legal guardianship of a sibling requirements
One of the most common questions we hear about sibling custody is: Can you take custody of a sibling at 18? In Texas, you must be 18 years of age or older in order to file a suit affecting the parent child relationship (SAPCR) or modification that involves a sibling. Of course, that doesn’t mean getting custody of your sibling will be easy.
According to Texas Family Code Chapter 102, you will need to prove you have standing (the legal right) to file a SAPCR in your particular case. In order to have standing to file for custody, you must be within three degrees of consanguinity (i.e., three degrees of relation, such as a sibling, cousin, aunt, uncle or grandparent) to the child. You must also be able to show there is an emergency, where the present circumstance significantly impairs the child’s physical health or emotional development. . Emergencies may involve the parent of the child committing an act of family violence, substance abuse, child endangerment, child abuse or abandonment, among others.
It’s also worth noting that most sibling conservatorship cases we see are more temporary in nature. For example, an adult sibling may ask for temporary conservatorship of a younger sibling until a parent successfully completes treatment for substance abuse. Keep in mind, if the other parent is still living and capable of caring for the child, the courts will want to explore that option first.
If the danger the child faces is a more permanent or long-term issue, and the other parent is out of the picture, that’s a scenario where Texas family courts would be more open to considering permanent conservatorship (custody) in a siblings case. You will also need to prove that you will be able to care for the child’s financial and emotional needs, as well as provide a safe and healthy home environment for the child.
Whether you want to know how can I get custody of my sister or brother permanently or how to gain custody of a sibling on a temporary basis, it’s important to speak with child custody lawyers in the jurisdiction where you live to learn more about your legal options.
How to gain custody of a sibling in Texas: Steps to take
How to take custody of a sibling temporarily:
If you are seeking temporary conservatorship of a sibling in Texas, the process is very similar to a case where a parent goes to court for a temporary restraining order (TRO) against the other parent.
You will need to file a petition with the court with an affidavit attached to it that explains why you do have standing to file the suit as a non-parent, and then you would file a TRO next. The affidavit should also list out the issues and facts pertaining to the case. This includes whether the request for relief is due to an emergency, abandonment or other circumstances that you specifically describe. You also need to explain your relation to the child and how you’ve had contact with the child, among other details. The affidavit must also explain how the child’s environment and emotional and/or physical safety would be significantly impaired but for the court signing the TRO, which is the vehicle that the affidavit is used to get.
Once the petition and TRO have been filed, the other party will get served. If you have the child in your possession, you don’t really have to worry about the steps you need to take until you go to court. However, if you don’t have the child in your possession, you can file a motion requesting the judge order the child be turned over to you at a certain date and time.
In addition, Child Protective Services (CPS) also can get involved. There are various tactics that can be used to get a child out of a dangerous environment, but the legal vehicle is the TRO and the petition. You should ask your child custody attorney what options are available to you in your situation.
TROs usually only last for 14 days, which gets the child out of imminent danger until the parties meet in court, speak their peace and a judge decides next steps. In order to get temporary custody of a child for a longer period you could try to get a protective order, which places heavier restrictions on the parent—at the discretion of the judge—and is enforceable in court. Alternatively, if you can convince the parent to agree to temporarily relinquish custody to you, the court may agree to grant you temporary custody.
How to gain custody of a sibling permanently:
We always caution non-parent clients to temper their expectations in cases where they are looking for a permanent custody solution regarding a child who is not biologically theirs. As noted earlier, custody by the biological parent is presumed to be in the best interest of the child. The courts tend to believe that even people who do really stupid things may be able to rehabilitate.
That being said, if you’ve secured a protective order and can show the child is in permanent danger—or the biological parents are either deceased or have relinquished or been stripped of their parental rights—then you can proceed to the next step: a final trial to seek permanent conservatorship.
So, can a sibling get custody of another sibling? Yes, but again, it isn’t easy. You most likely will face an uphill climb. Not only will you be faced with the presumption that biological parent custody is in the best interest of the child, you could face opposition from other people in the three degrees of sanguinity (grandparents, aunts, uncles, cousins, other siblings).
Gaining custody of a sibling can be complicated—seek legal advice
If you live in the Dallas / Fort Worth area and want to learn more about how to gain custody of a sibling, the Sisemore Law Firm is here to help. We can help you weigh your legal options, clarify what obstacles you will likely face and explain next steps.