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[TX] What can a surviving parent do to get a child back from a maternal grandparent who refuses to return custody?
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My son’s mother passed away in October 2025 and I am the surviving parent. Travis County contacted me and told me to come get my son, but the maternal grandmother had already taken him to her home in Williamson County. When I went with my sister and a case manager to retrieve my son, the grandmother called the police. Williamson County officers responded and would not let me take my son due to the weather. The grandmother promised to return him over the weekend, which did not happen. When I returned Monday, I and my sister and case manager received trespassing notices. I then filed a writ of habeas corpus for return of child. The Attorney General’s office had already opened a child support case, which was later closed because the child’s mother passed away. A DNA test was ordered by the judge and I submitted the results. The grandmother’s first attorney withdrew from the case. I have since filed for temporary orders to get my son back since there is no existing custody order in place. Our court date was rescheduled because there was not enough time for a judge to hear the case. The grandmother’s new attorney is asking whether I am willing to pay child support, and I just want my son returned.
I can understand how distressing this situation must be for you. Have you been able to communicate with your son’s grandmother about your concerns and your desire to have your son returned?
Yes, in October 2025. But after she had the trespassing notice issued against my sister, my case manager, and me, I stopped communicating with her other than notifying her of court dates.
What specific outcomes are you hoping to achieve from the upcoming court hearings regarding your son?
The return of my son, and if the grandmother wants to see him she has to contact me. She cannot withhold my son from me. She took my son without my consent.
Is there anything else the Family Lawyer should know before I connect you? Rest assured they’ll be able to help with your child custody issue.
I don’t know.
Hey there! I’m Priscilla, an attorney with many years of experience. No attorney-client relationship is formed from our conversation. I understand you’re dealing with a difficult situation involving the custody of your son. Could you share more about any legal steps you’ve taken so far or any specific concerns you have?
- I filed a writ of habeas corpus for return of child.
- The judge ordered a DNA test.
- I completed the DNA test and provided results to the other party.
- I filed for temporary orders.
- The court date was reset due to insufficient time for the case.
Could you let me know if there are any existing court orders regarding custody or visitation rights for your son?
No, there are no orders in place.
Thanks for letting me know. Have you been able to gather any documentation or evidence that supports your claim to custody, such as birth certificates or any communication with authorities?
I submitted the trespassing documentation. I do not have his birth certificate or any written communication with Williamson County or Travis County.
Got it, thanks for sharing that. Have you had any communication with a family law attorney or legal aid about your situation, or are you handling this on your own?
I tried legal aid but they are not taking family custody cases unless domestic violence is involved. I do not have enough money for a family law attorney so I have been handling this on my own.
Based on your situation, here are several legal arguments and considerations in Texas that could support your case.
Parental Rights: In Texas, biological parents generally have a fundamental right to custody of their children under Texas Family Code Section 151.001, unless a court determines otherwise. As the surviving parent with confirmed DNA paternity, you have a strong legal claim to custody.
Writ of Habeas Corpus: Under Texas Family Code Section 157.371, a writ of habeas corpus can be used to challenge the unlawful detention of a child by another party. You have already taken this step, which is the correct legal action in your situation.
Temporary Orders: Under Texas Family Code Section 105.001, temporary orders provide immediate relief and set temporary custody arrangements until a final decision is made. These are critical in your situation since there is no existing custody order.
Here is what you should do next:
- Obtain a copy of your son’s birth certificate from the vital records office in the state where he was born. This document is essential for establishing your parental rights and should be obtained as soon as possible.
- Keep all court documents, DNA test results, and any communication with authorities organized and ready for your court appearances.
- Use the time before your rescheduled hearing to prepare thoroughly. Draft a clear statement outlining your relationship with your son, the timeline of events since the child’s mother passed away, and your intentions for his care.
- Explore law school clinics in your area where students supervised by licensed attorneys can provide free or low-cost assistance with family law matters.
- Consider requesting an earlier court date given the urgency of the situation. A judge may be willing to expedite a temporary orders hearing when a child is being withheld from a biological parent with no existing order in place.
Thank you, I appreciate the help.
If you have any further questions, I’ll be here!
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