Texas Child Custody After Death of Custodial Parent
The courts have made it clear that parents have a fundamental right to custody of their children. For this reason, grandparents sometimes are denied visitation with their grandchildren when their child – the children’s mother or father – dies. But what happens when the parents are divorced and the parent who had custody of the children dies?
The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies – unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children’s welfare.
This ruling came about when a custodial mother died. The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas. The maternal grandparents filed suit to obtain legal custody of their grandchildren. The father filed a petition for writ of habeas corpus to obtain custody of his children.
The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is “a serious immediate question concerning the welfare of the child.” The grandparents argued that the children should have remained “with the people who can provide them the most comfort: their grandparents and their nanny.” But the San Antonio Court ordered the children returned to their father. It held that “merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child’s welfare in the habeas corpus context.”
Post-Mortem Child Support
For a long time, Texas law said that unpaid child support terminated on the death of the noncustodial parent. This year’s Texas legislature dramatically changed this law by establishing a system for post-mortem child support.
Senate Bill 617 deleted the clause stating that a noncustodial parent’s child support obligation terminates on that parent’s death. The Bill added Texas Family Code section 154.016. This section allows a court to require a noncustodial parent to purchase and maintain a life insurance policy or annuity to pay the unpaid child support in the event that the noncustodial parent dies while child support is still payable.
The Bill also added Texas Family Code section 154.015. This section states that “the remaining unpaid balance of the child support obligation becomes payable on the date the obligor.” But how is the balance determined? Section 154.015 directs the court to discount future child support to present value but then also to consider benefits to the child upon the obligor’s death, such as life insurance. The court then decides whether the child support obligation has been satisfied. To the extent not satisfied, the child support obligation becomes a claim against the obligor’s estate.
Taken together, these legislative changes operate to protect the child from a loss of child support occasioned by the untimely death of a parent. Texas Family Code section 154.015 applies only if the noncustodial parent died on or after September 1, 2007. The other parts of the statute apply to an order for child support issued at any time, even before the Act passed.
Learning about your rights and options in a divorce can be a scary and intimidating process. There is an incredible amount of information available on the internet—but a great deal of it is free (and you always get what you pay for), vague, and does not apply to your unique situation. Finding a good divorce lawyer that you can trust and feel comfortable with can be extremely difficult, and I know that working up the courage to call and schedule a consultation with that attorney is not easy for you.