Custody Following the Death of a Parent

Parents often begin planning for their children’s future from the moment they are born. Unfortunately, care and preparation are often useless when it comes to avoiding untimely deaths, and many parents do not live to see their children become adults. In many instances, the death of a parent brings up questions regarding who has the right to rear the child they left behind. As such, it is smart for anyone with concerns about child custody following the death of a parent to meet with an attorney as soon as possible. The Dallas child-custody lawyers of McClure Law Group are mindful of the importance of protecting custodial rights, and, if you need assistance with a custody issue following the death of a parent, we can gather the evidence required to provide you with a strong chance of achieving a favorable outcome.

In Texas, the term conservatorship is used to describe what is typically thought of as legal custody of a child. The manner in which the courts evaluate who should be granted conservatorship rights over a child following the death of a parent depends, in part, on the arrangement that existed before the parent’s death. This is true regardless of whether the deceased parent stipulated in their will that a party should be granted custody of the child.

For example, if the parent that passed away was married to the child’s other parent, the Texas courts generally presume it is in the child’s best interest for the surviving spouse to retain conservatorship rights. A party who has standing to file a suit affecting the parent-child relationship can contest this presumption, however, by arguing that the surviving parent is unfit to raise the child. For example, if the parent has a history of substance abuse or domestic violence or otherwise presents a danger to the child’s physical and mental health and well-being, they may be deemed unfit. Typically, they must offer clear and convincing evidence that the parent is unfit in order for the courts to remove the child from the parent’s custody.

In cases in which the parents were not married, and a custody agreement or order dictated the terms of each party’s parental rights, the court will typically grant the surviving parent full conservatorship rights, as well. Notably, though, the Texas Family Code (the “Code”) states that the death of a conservator of a child constitutes a substantial and material change of circumstances that is adequate to justify a modification of an existing child-custody order. In other words, a party with standing to seek conservatorship rights can seek a modification on the grounds that one of the parents died.

As with any child-custody case, the court’s primary concern in evaluating whether conservatorship, possession, and access rights should be granted or altered is what is in the child’s best interest. The court will weigh numerous factors in determining what is best for a child, including the child’s physical and emotional needs, the health of the child and parties seeking conservatorship rights, and the relationship between the child and other parties involved in the suit.

When a child loses a parent, it often not only causes significant emotional distress and mental trauma but also calls into question who should be granted conservatorship rights and access to the child. If you are faced with determining custody following the death of a parent, it is advisable to meet with an attorney to evaluate your rights. The experienced Dallas lawyers of McClure Law Group have ample experience managing complicated custody issues, and, if you engage our services, we will work diligently to help you seek your desired result. We represent people in Dallas, Rockwall, Fort Worth, Richardson, Frisco, Irving, McKinney, and Garland custody cases. We also assist parties with family-law disputes in Dallas, Denton, Rockwall, Collin, Tarrant, and Grayson Counties. You can reach us through our online form or by calling 214.692.8200 to set up a confidential conference.