When the Custodial Parent Dies – Who Will Have Custody of the Child?
When the custodial parent of a child dies, in the state of Texas, not only is the child and family union devastated, but now is presented the difficult issue of who will become the child’s guardian. Who are the possible candidates that may be legal guardians?
- Non- Custodial parent, if paternity is acknowledged
- Grandparents
- Other relatives
- Godparents, Family friends, Neighbors
- State Foster System
Usually, the surviving non-custodial parent will have an automatic right to custody of the child. Texas law favors a child having a solid relationship with both parents and in the event of death, the living parent will take over permanent exclusive custody of the child. What factors should be considered in the child’s best interest that could determine custody by the surviving parent if he/she is not appropriate for the child?
- Did the court, after the divorce, terminate your parental rights in a legal proceeding? If the non- custodial parent had legally been terminated of his/her parental rights this is binding and the terminated parent WOULD NOT be granted permanent custody of the child.
- What if the custodial parent remarried and the new stepparent legally adopted the child? If the child was legally adopted by the stepparent and the non-custodial parent had waived their parental rights, the stepparent would be granted permanent custody of the child.
- What if the non-custodial parent has acknowledged parentage, but paternity has not been established? To be entitled to custody of the child, the father would first claim parental rights through paternity testing to determine if he is the biological father of the child or if he has signed the child’s birth certificate. After Paternity is established, a separate legal proceeding may need to be initiated to override the terms of the mother’s will.
- What if the Custodial Parent created a will that stated the grandparents/godparents would take over as the legal Guardians of the child in the event of death? Many parents will request a particular person or group, such as grandparents, relatives, or godparents to become guardians for their minor children in the case of their demise, but a child is not a piece of property to give away to others when the other biological parent is living. The judge will view what is in the best interest of the child and will always first look at the surviving parent. If this parent meets basic standards the child will live with this parent. If the surviving parent cannot serve the child’s best interest, then the judge will consider the guardian designated in the deceased parent will.
Nacol Law Firm P.C.
tel: 972-690-3333
What Happens to Your Will After a Divorce in Texas
A divorce can be grueling is transformed by law, probate, and insurance decisions made prior to divorce. It is important to know exactly what will happen to your will and life insurance if this misfortune happens to befall your family. The family unit is important and if it is fractured the question of what happens to “my will”, “my life insurance”, or “my trust” is a relevant and important one that needs to be answered.
If you are divorced from your spouse then your previous will may be in many aspects considered revoked automatically. Under the Texas Estate Code § 123.001 after a valid divorce, all provisions in a will, including all fiduciary appointments, shall be read as if the former spouse and each relative of the former spouse who is not a relative of the testator failed to survive the testator, unless the will expressly provides otherwise. The translation of this states: if you receive a valid divorce then your will is in many respects revoked and your spouse and stepchildren will receive nothing from the previous will. The one exception is if the will explicitly states that in case of divorce the previous spouse or children will still inherit. This revocation applies to fiduciary appointments as well. For instance if you have a trust and your spouse is the trustee, then she will be revoked from the trust in its entirety.
If you divorce your spouse, then your spouse’s beneficiary status pertaining to your life insurance will be automatically revoked. Texas Family Code § 9.301 states an automatic revocation upon divorce and lists three exceptions:
- If the divorce decree names the former spouse as a beneficiary
- The individual adds the divorced spouse as a beneficiary to the policy after the divorce
- The former spouse receives the life insurance as a “guardian” of the children
These are the exceptions for life insurance. If you decide to divorce your spouse unless further action is taken, the spouse will not benefit from your death regarding the life insurance.
Finally, the inheritance of a divorced spouse in reference to a trust depends on whether the trust is revocable or irrevocable. If you have set up a Revocable Trust then after the divorce your prior spouse will automatically lose his/her beneficiary status within the trust. On the other hand, if you set up an Irrevocable Trust then regardless of a divorce the prior spouse will still inherit and be considered a valid beneficiary. A divorce will have no effect on an Irrevocable Trust. If you decide to create an irrevocable trust, be sure to understand that your spouse will inherit the assets in the trust even after a divorce.
In a Texas divorce, the law protects you from unchecked gifts to your prior spouse and stepchildren with regard to your will, life-insurance, and revocable trusts. The prior spouse will not take from these unless one of the few exceptions apply. Divorces are riddled with complexities and it is prudent to seek advice from an experienced Texas divorce attorney during these proceedings to ensure that the divorced spouse is removed completely from your will and does not reserve an argument to acquire your assets post-divorce .
What Are Your Father’s Rights In Texas?
Are you the father of a child in Texas and Mom is refusing to let you see or communicate with your child? Are you paying child support in Texas for your child, yet Mom tries to dominate all interaction between you and the child to suit her needs. Is this Parental Alienation in the present or a step commencing down that path?
Fathers have rights in Texas and because this is one of the more frequent calls we receive from Dads, I thought it was time to discuss some specific law from the Texas Family Code regarding the rights and duties afforded to a Parent, whether Mom or Dad!
Under the Texas Family Code a “Parent” is defined as the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who acknowledged his paternity under applicable law or an adoptive mother or father.
Tex. Fam. Code Sec. 160, otherwise known as the Uniform Parentage Act, states that a man is presumed to be the father of a child if:
1. he is married to the mother of the child and the child is born during the marriage;
2. he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
3. he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;
4. he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:
a)the assertion is in a record filed with the bureau of vital statistics;
b) he is voluntarily named as the child’s father; or
c) he promised in a record to support the child as his own; or
5. during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.
If the above applies to you and you have established legal standing to support that you are “the father,” what are your rights and duties as the Texas Family Code Sec. 151.001 states:
§ 151.001. Rights and Duties of Parent
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
(2) the duty of care, control, protection, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
(4) the duty, except when a guardian of the child’s estate has been appointed, to manage the estate of the child, including the right as an agent of the child to act in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government;
(5) except as provided by Section 264.0111, the right to the services and earnings of the child;
(6) the right to consent to the child’s marriage, enlistment in the armed forces of the United States, medical and dental care, and psychiatric, psychological, and surgical treatment;
(7) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(8) the right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the child’s education; and
(11) any other right or duty existing between a parent and child by virtue of law.
Both parents have these rights unless a court order has created, modified, ordered, or delegated the statuary rights of a parent. The rights you have will support and empower you in a hands on relationship with your child.
All parents have the right to have a relationship with their children! One misguided parent may attempt to employ parental alienation to hurt the other parent and cause the child to be denied a loving relationship with the other parent. Know your rights and contact an attorney who can help you and your child fulfill a meaningful relationship!
Julian Nacol
Julian M. Nacol
Texas Attorney at Law
The Nacol Law Firm PC
Walnut Hill Tower
8144 Walnut Hill Lane
Dallas, Texas 75231
Metro: (972) 690-3333
Toll Free: (866) 352-5240
Websites:
www.nacollawfirm.com
www.nacollawfirmblog.com
www.fathersrightsdallas.com
www.divorcedallastx.com
Julian Nacol, a Dallas native, focuses his law practice on family law, fathers’ rights, civil and probate litigation, and new business formations. Prior to joining the Nacol Law Firm, Julian interned with the Office of the Federal Public Defender in Ft. Worth, Texas and also clerked for The Nacol Law Firm P.C.
A US Navy Veteran, Julian Nacol served his country in South East Asia for a period of 4 years. During his military tenure, Julian was stationed in Japan and served as an Aviation Technician, and a Plane Captain on the aircraft carriers USS Kitty Hawk and the USS George Washington. He was a member of the VFA-102 Diamond Back Squadron.
Julian Nacol received his bachelor’s degree from the University of Texas at Austin. Following graduation, Julian commenced his studies at Texas A&M School of Law and graduated with a Doctor of Jurisprudence. While at Texas A&M School of Law, he served as president of the Federalist Society.
Julian Nacol resides in Dallas with his family.
Admitted to
- U.S. District Court Northern District of Texas
- U.S. District Court Eastern District of Texas
Education
- J.D., 2016 Texas A&M College of Law, Ft. Worth, Texas.
- B.A. in Philosophy, 2013, University of Texas, Austin.
Professional Associations & Memberships
- State Bar of Texas
- Dallas Association of Young Lawyers
- Dallas Bar Association
Julian Nacol’s law practice concentrates on the following areas:
Family Law & Divorce, Civil & Commercial Litigation, Real Estate, Business Transactions
Divorce and Family Law:
Divorce | Fathers’ Rights | Child Custody | Interstate Jurisdictions | Parental Alienation | Parental Rights & Support | Modifications & Visitation | High Asset Divorces | Paternity | Division of Property | Protective Orders | Prenuptial & Post Marital Agreements | Voluntary Legitimations | Grandparent’s Rights | Enforcements | Post Maintenance Spousal Support | Divorcing with a Business
Civil Law:
Transactional Law | Contract Disputes | Tort Liability | Negligent Security | Construction Defects | Construction Law | Contractor Issues | Subcontractor Issues | Lien Disputes | Fraud | Breach of Contract | Breach of Non-disclosure Agreements | Deceptive Trade Practices Act Cases | Breach of Fiduciary Duty | Wrongful Termination | Employment contracts | Insurance-coverage Disputes | Home-builder and Seller Warranty Disputes | Investment Fraud | Consumer Fraud | Intellectual Property Litigation
Real Estate Law:
Homeowners’ Association Law – HOA Law | Residential Real Estate | Commercial Real Estate | Residential Construction Liability Act Cases | Contractor Issues | Subcontractor Issues | Construction Contracts | Lien Disputes | Real Estate Residential and Commercial Closings | Real Estate Dispute Litigation
Business | Commercial | Corporate Law:
New Business Formations | Lender Liability | Shareholder Disputes | Partnership Issues | Torts | Fraud | Construction Claims | Breach of Fiduciary Duty | Officer and Director Liability | Formation of Corporate Entities and Partnerships | Business Litigation | Corporate Law | Joint Ventures Law| Partnership Law | Small Business Law | Limited Liability Company Law | Buying and Selling of Businesses | Drafting Contracts | Anti-Trust and Competition Law | Business Planning | Contract Negotiations
Julian Nacol, Texas Attorney at Law
The Nacol Law Firm PC
8144 Walnut Hill Lane
Suite 1190
Dallas, TX 75231
Metro: (972) 690-3333
Toll Free: (866) 352-5240
If you think you may have a case, please call, or use our website form to contact us about your situation.