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 was terminated on the death of the noncustodial parent. Recently, the 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.
FAQs about Texas Child Custody and Death of Parent
Does the father automatically get custody of a child if the mother dies in Texas?
No. In Texas, if the mother passes away, the courts will have to determine which party is most fit to provide care for the child. A judge may consider factors such as the financial situation of each party, their relationship with the child, the ability to provide proper physical and emotional care, and other relevant circumstances.
Who gets custody of a child if both parents die in Texas?
If both parents pass away, a court will then designate an appropriate guardian or conservator to make decisions on behalf of the child. The process generally involves petitions from family members or other individuals interested in assuming legal responsibility for the child. Ultimately, the court will select the individual they deem best suited for the job, taking into account several factors including the child’s wishes, if applicable.
What happens when the custodial parent dies?
If the custodial parent passes away, it is up to a court to make a decision regarding who will assume responsibility for the child’s physical and/or legal guardianship. Generally, a family member or close acquaintance of the deceased parent is the first option. However, if no suitable candidate is available, the court can decide to award child custody to another individual or agency.
Who gets custody if both parents die?
If both parents pass away, a court then has to determine who will serve as the legal guardian or conservator for the child. Family members are generally considered first; however, if none are suitable, the courts may look outside of the family for an appropriate guardian. The courts will also consider the wishes of the child if they are old enough to express them
What happens to child support when custodial parent dies in Texas?
When the custodial parent passes away, the non-custodial parent is still legally obligated to fulfill their financial duties according to the original court order. The individual responsible for administering the estate may be liable for any arrears owed unless it can be proven that the deceased had made other arrangements for the child’s care and maintenance before passing away.
What are the grounds for losing custody of a child in Texas?
In Texas, a court may choose to modify an existing custody arrangement if it concludes that there has been a significant change in circumstances since the original order was entered or if it determines that such a modification is in the best interest of the child. Generally, this includes situations where the parent seeking custody proves that the current custodial arrangement is detrimental to the health and safety of the child.
Can a stepmom get custody if the father dies?
Stepmothers do not automatically gain custody of stepchildren upon the death of their spouse. However, if they are willing and able to provide care and support for the children as well as protect their rights and interests, they may petition the court for guardianship.
What is considered a custodial parent in Texas?
A custodial parent in Texas is the individual who is granted legal authority to make decisions regarding the day-to-day upbringing of a minor child. This person typically has physical custody of the child and is responsible for their educational, medical, psychological, and other needs.
What legal rights do step-parents have in Texas?
In Texas, step-parents generally do not have any legal authority over their stepchild’s upbringing unless they receive court-appointed guardianship or conservatorship. Even if they are named on a birth certificate, they do not have any legal responsibility or rights over the child’s care unless given consent from both biological parents.
Is a stepparent a legal guardian in Texas?
No, a stepparent is not automatically a legal guardian upon the death of their spouse in Texas. It is possible for them to file a petition with the court requesting guardianship, but this must be approved by a judge before any legal rights or authority over the child are granted.
What happens to my stepchild if my spouse dies?
If a stepchild’s biological parent passes away, it will be up to the remaining parent or legal guardian to decide who will assume custody and responsibility for the child’s wellbeing. If there is no surviving parent, then it will be decided by family members or other individuals who have been appointed to act in loco parentis.
What happens to stepchild when parent dies?
When a parent dies and leaves behind a minor child, it will be up to the surviving parent (if applicable) or another legal guardian to assume control and responsibility for that child’s welfare. This includes physical, emotional, educational, financial, and other needs.
Do stepchildren have inheritance rights in Texas?
Yes, stepchildren in Texas are entitled to inherit from the estate of their stepparent in accordance with state laws. They also have certain rights with respect to receiving Social Security benefits and other forms of assistance provided by the deceased stepparent’s estate.
Am I financially responsible for my stepchildren?
No, you are not automatically financially responsible for your stepchildren. However, if you voluntarily take on any financial obligations related to their care (such as medical expenses or school fees), you will need to ensure these are fulfilled even after your spouse passes away.
Can I go after my ex-husband’s new wife for child support in Texas?
No, you cannot seek child support from your ex-husband’s new wife in Texas. Child support payments are only payable from one biological parent to another.
Does guardianship override parental rights in Texas?
No, guardianships do not override parental rights in Texas. Parental authority remains intact while a guardianship is being established; however, it does allow someone else (a guardian) to temporarily assume full responsibility for making important decisions on behalf of a minor child if both parents are unable or unwilling to do so.
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.