What Happens When a Custodial Parent Dies in Texas?

No matter how you feel about the other parent of your child, their sudden passing will have a dramatic impact on your child. In addition to trying to be there emotionally for your child, the custody arrangement may be up in the air, creating confusion and further turmoil. What happens when a custodial parent dies in Texas?

Boudreaux Hunter & Associates, LLC helps parents seek and modify child custody orders so that they can have a meaningful impact on their child’s life. We focus exclusively on family law, giving us a competitive edge. We fiercely advocate for our clients. Reach out to us today for a confidential consultation.

Texas Child Custody Laws

When a child’s parents are not together, they may ask the court to order child custody, called “conservatorship” in Texas. Child custody is determined based on the child’s best interests. After the court enters an order, the order is modifiable. Specifically, the Texas Family Code states that the death of a child’s conservator is a “material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order.”

Therefore, after the death of a conservator, a person with standing to seek conservatorship can ask the court to modify the custody order. The court weighs numerous factors in determining what is in the child’s best interests, including:

  • The relationship between the child and the parties seeking conservatorship
  • The willingness of the parents to cooperate with each other
  • The stability of the parties’ environment
  • Continuity of the child’s situation
  • Any history of domestic violence
  • The child’s wishes if they are mature enough to express them

Possible Custody Arrangements After a Custodial Parent Dies

The court will want to place the child in a stable environment. This could mean different things, depending on the situation. Possible conservators may include:

Surviving Parent: Because Texas public policy supports both parents having an active role in their children’s life, conservatorship going to the surviving parent is the default arrangement.  However, this is not always the case. For example, the court may find that the surviving parent having conservatorship of the child may not be in the child’s best interests if any of the following situations apply:

  • The parent presents a danger to the child
  • The parent lacks the ability to raise the child
  • The parent cannot provide a safe and appropriate residence for the child

Grandparents: Another common arrangement is to award primary conservatorship to the grandparents. This is more likely if the non-custodial parent is absent or uninvolved in the child’s life. The court will consider the best interest factors listed above.

Additionally, the passing of one of the child’s parents gives grandparents in Texas standing to seek visitation with the child.

Person Named in the Will: The court can also consider awarding conservatorship to a person named in the deceased parent’s will. Many parents include such provisions in their will. However, custody cannot be automatically granted or transferred in a will. The court must still consider what is in the child’s best interests when awarding conservatorship.

Others: The Texas Family Code provides for additional times when other individuals may have legal standing to seek conservatorship, including anyone who:

  • Had actual care, control, and possession of the child for at least six months that ended no later than 90 days of filing the petition for conservatorship
  • The child or parent resided with for at least six months that ended no later than 90 days of filing the petition for conservatorship
  • Is a close relative and there is proof that not making the order would significantly impair the child’s physical or emotional needs or the surviving parent has consented to the arrangement

Why You Need a Family Lawyer If the Custodial Parent Dies

When a child loses a parent, serious emotional distress and mental trauma can follow. At the same time, there may be questions about the current custody arrangement and whether it should be changed. These cases are often complicated, and your interests are best served by having a knowledgeable family law advocate on your side.

Contact an Experienced Family Lawyer for Help with Your Case

If one of the parents of a loved one recently died and you need assistance with seeking conservatorship, you can reach out to Boudreaux Hunter & Associates, LLC for help. We have many years of experience working to prove what is in the child’s best interests and are here to help you, too. Contact us today at (713) 333-4430 for your initial consultation where you can learn about your legal rights and options.