In Texas, child custody after the death of a custodial parent may be a challenging issue to resolve. Because every divorce and custody case is different, it may be challenging for a court to determine who should be awarded custody of a child when their parent passes away.
Examples of individuals who may be able or willing to serve as guardians include:
- Family friends
- Non-custodial father
- Grandparents
- Other relatives, such as grandparents, aunts, or uncles
- The state
Pursuant to child custody laws for unmarried parents, if a child’s mother passes away, the non-custodial father may be able to obtain custody of the child. In these cases, the father will need to establish their paternity and have the court formally acknowledge their paternity.
The father will need to provide one of the following legal documents to obtain child custody if the child’s mother passes away:
- The child’s birth certificate with the biological father’s signature
- An acknowledgment of paternity form
- The biological parent will need to sign this form and file it with the court
If a divorced father does not have a valid acknowledgment of paternity, they will not be able to or have the right to take over custody of their child. If this occurs, the father will need to provide their paternity in court.
If the child’s father did not sign the birth certificate, the court may modify the birth certificate. A biological father can request paternity testing following the death of the child’s mother.
The procedures and requirements for acknowledging a child’s paternity may vary by state. This means that it is important to refer to Texas child custody procedures when determining what to anticipate when initiating paternity testing.
A father will be guaranteed certain rights when they sign an acknowledgement of paternity (AOP). Although it may vary by case, it typically includes:
- The right to be responsible for supporting the child
- The right to have their name listed on their child’s birth certificate
- The right to be contacted if there is an adoption proceeding
It is important to note that signing an AOP does not immediately ensure the father’s right to child custody or visitation. If the father agrees to pay child support, it demonstrates a willingness to be involved in the child’s life.
In these situations, the court may override a new guardian’s wishes if they do not want to grant the father the right to visitation. This also ensures the child’s chance and ability to build a relationship with their surviving parent.
When a child’s parent dies, it may create complicated legal issues related to existing child custody orders or pending custody cases. There may be specific laws and court decisions that establish rules regarding what will happen with child custody once a parent passes away.
The United States Constitution provides parents with the right to make decisions about their children. States typically also recognize this right and will limit the ability of nonparents to interfere with the decisions of the parent.
When a non-parent family member, such as a grandparent, wants to seek custody or visitation, the nature of the custody order or court case will determine whether the non-parent can pursue those wishes in court. For more information on the specific laws in Texas, an individual should consult with a local attorney in Texas.
How Courts Make Custody Decisions?
When making child custody decisions in Texas, courts will use the child’s best interest standard in Texas. The best interests of the child can vary and include numerous factors, such as:
- The child’s age, mental and physical health, and gender
- Impact on the child of changing the status quo
- A child’s preference if they are mature enough to express their opinion
- The parent’s mental and physical health
- The parent’s ability to provide the child guidance
- The parent’s lifestyle and other social factors
- The emotional bond between parent and child
- The parent’s ability to provide the child with:
- food
- shelter
- clothing
- medical care
- Child’s established living pattern, such as their:
- school
- home
- community
- religious institution
- Quality of the child’s education in the current situation
If none of these factors favor one of the parents over the other, the majority of courts will focus on which of the parents is likely to provide their children with a stable environment and better foster the child’s relationship with their other parent. This can mean giving custody to the parent who has been a child’s primary caregiver if they are a younger child.
With an older child, the court may award custody to a parent who is able to foster continuity in their education, religious institutions, neighborhood life, and peer relationships.
What Types of Support Should Children Receive?
When a custodial parent passes away, the child may need different forms of support, including emotional and financial. The death of a parent has both immediate and long-lasting effects on a child, so they will likely need emotional support from their family and friends.
There are many different types of issues that may arise when a custodial parent passes away, including:
- The child being an heir
- Social security benefits
- Testamentary trusts
- Estate issues
- Life insurance
In most cases, if the child’s mother passes away, custody will be awarded to the biological father if paternity is established and the father is fit to care for the child. Child support payments will still have to be paid until the surviving parent requests a modification and takes over custody of the child.
Then, the parent will be able to make a claim on the custodial parent’s estate, their life insurance benefits, and their social security in order to help pay for the expenses associated with raising the child. If another individual is appointed guardian, they will be entitled to receive child support from the non-custodial parent or the deceased custodial parent’s estate.
Why Is It Important to Appoint a Testamentary Guardian of Your Children in Your Will?
Failing to appoint a guardian in case both of a child’s parents pass away will most likely result in an individual who has sufficient interests in the child having to apply to a family court or supreme court to be appointed their guardian. This may result in disputes regarding who should serve as guardian.
If the parents make an appointment in their will, it will greatly lessen the likelihood of custody disputes. If a dispute does arise, appointing a testamentary guardian in a will can provide a clear statement of the parent’s intentions regarding their child.
When Should You Consider Choosing a Guardian?
The appointment of a testamentary guardian provides an individual with a great deal of power and influence in the life of a child. Because of this, it is important for parents to choose an individual who they trust, who has a bond with the child, and who has the necessary time, energy, and income to properly care for them.
It can be helpful to ask permission from the named guardian and make sure they are willing to accept the responsibility. It is also important to reassess the choice as time passes and modify it when necessary.
When Do I Need to Contact a Lawyer?
If you have not appointed a guardian for your child in your will, it is important to reach out to a Texas child custody lawyer for information on doing so. Your lawyer can also help you create an estate plan that will ensure your loved ones are cared for.
Even if you do not think you have enough property to create an estate plan, it is still important to outline your wishes and who you want to care for your children if you pass. This will provide you with peace of mind, knowing your child will be cared for in your absence.
LegalMatch can help you find a Texas child custody lawyer who can provide you with advice whether you are planning for the future or are already in a situation where you need assistance. It is free to submit your question online and get responses from lawyers in your area who are ready to help you with your child custody concern.
