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    Can Aunts & Uncles Take Custody of Children?

    Do aunt/uncle rights exist? In other words, do aunts and uncles have the right to legal access to or physical possession of their nieces and nephews? Does Texas recognize aunt and uncle rights to custody?

    The short answer:

    Not really. But there are exceptions…

    Aunt/Uncle Rights in Texas Child Custody Cases

    Texas Family Code generally allows the child’s parents to make all the decisions related to how the child is raised. This includes deciding who they can and cannot see or where they live.

    However, aunt and uncle rights do exist to a certain degree. Both may be able to open up a case against the parent(s). They may also be able to intervene when a case is already pending against the parent(s) related to the child.

    This may be a case opened by one of the parents, grandparents or perhaps a Texas Department of Family and Protective Services (DFPS) case.

    The trick is, you have to prove to the judge that living with you is in the best interest of the child. You must show that their safety and health are in danger. And that you must intervene to protect the child’s emotional development and/or physical health.

    How To Get Legal Guardianship Of A Nephew Or Niece

    A child under 18 years old is considered incompetent in a court of law. That means the child is unable to make decisions for himself/herself. If both parents are deemed deceased, incapable of or unavailable to care for the child, a legal guardian over the age of 18 may be appointed.

    This gives that adult parental rights over the child. The guardian has the legal right to decide what school the child will attend, where she/he will live and make medical decisions related to the minor.

    There are two ways to for an aunt or uncle to get legal guardianship over their nieces and nephews in Texas:

    1. A Family Law attorney drafts legal documents which are signed by the parent(s) granting guardianship
    2. The Court grants guardianship over the child in a judge’s ruling because of an open DFPS case or guardianship petition filed with the court clerk

    Aunt/Uncle Rights: Temporary Guardianship

    Sometimes, uncles and aunts need custody of nephews and nieces when the child’s welfare is not in immediate danger. Parents in life-threatening situations can grant temporary guardianship over the children through legal documents.

    This gives the aunt or uncle custody of the child during the parent’s absence or in case of their death. Some examples include:
    • Soldier being deployed
    • Firefighter actively fighting an ongoing forest fire
    • Convicted of a crime and about to start a prison sentence
    • Very ill and going through radiation or chemotherapy treatments

    A parent has the right to grant temporary guardianship to an adult of her/his choice. However, it must be in writing and include the following:
    • Parent’s name
    • Name of the appointed guardian
    • Names and birthdates of all children involved
    • How long the temporary guardianship will last
    • Any limitations to the parental rights being granted over the children

    Some dates require that the document be notarized by a certified notary public. Contact your local family law attorney for details.

    Aunt/Uncle Rights: Court-Granted Guardianship

    If the courts get involved because a petition for guardianship was filed or a DFPS case was opened against the parents, they could lose custody of their children. Courts generally prefer to place these children with immediate family members.

    This includes grandparents, uncles, and aunts. However, you must prove in court that you’re fit to care for the children. And if another close relative is also fighting for custody or guardianship, this could be an uphill battle.

    If your sister or brother loses custody of their children to DFPS, you must petition the court if you want legal guardianship. Then, you must prove that you’re fit to take care of the kids.

    How To Petition for Guardianship Of Your Niece Or Nephew

    Thinking about obtaining legal guardianship over your nephew or niece through the courts? The first step is to file a petition for guardianship with the appropriate court in the county where the child currently resides.

    According to Texas Guardianship Rules, you must hire an attorney to petition the court for legal guardianship over your niece or nephew.

    The reason?

    The paperwork is complicated, and the process is very complex. You must present your case in a court of law, which will determine what’s in the best interest of the child.

    When writing up your petition, clearly state why it’s necessary and urgent. Make three or more copies of the Texas child guardianship petition:

    • Submit one to the court clerk
    • Keep the other two for your records


    A date will be set for a court hearing. Then, you must get certified by the Guardianship Certification Board of Texas by taking the required guardianship test. You’ll also have to submit to a fingerprint check and background check.

    While awaiting your court date, gather all medical and legal documentation and other hard evidence together. Contact witnesses to ensure they’ll testify in court to provide evidence to support your claims.

    Like other family members, aunts and uncles can take custody of children in certain situations. If your family needs help staying together, contact our office today.