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  • Writer's pictureAngela Faye Brown

Unthinkable Series: If Mom Passes Away, Who Get The Child?

As vaccine access gives more and more Americans hope that the pandemic might be coming to an end, families will, unfortunately, have to deal with the fallout from COVID-19 for decades to come.

More than 440,000 people have died in the US due to COVID-19 leaving behind untold numbers of spouses, partners, co-parents, and children. With each unfortunate death, surviving family members are left to pick up the pieces. That process can become even more complicated if there are concerns about the custody of the surviving children. Although Texas courts base custody decisions on the child’s best interest, the primary custodian after a parent dies can vary depending on the circumstances.

Married Parents

If a couple is married and one parent dies, Texas law automatically grants custody of the children to the surviving spouse unless the court determines that the surviving parent is unfit. A parent is unfit to raise a child if that parent’s custody would negatively impact a child’s physical or emotional health and development.

Separated or Divorced Parents

If parents are separated or divorced at the time of the custodial parent’s death, the surviving non-custodial parent will have an automatic right to custody as well. This automatic custody right remains intact unless the surviving parent’s parental rights have been legally terminated or the court finds a history of child abuse, crime, drug addiction, or other factors that make the surviving parent unfit.

Remarried Parents

If the custodial parent remarried and there was a step-parent in the picture at the time of death, the court will look to the relationship between the children and step-parent to determine custody. If the step-parent legally adopted the children and the non-custodial parent waived their parental rights, then the courts will grant permanent custody to the step-parent.

If the step-parent did not complete a legal adoption, the court would make a custody decision based on the child’s best interest. This means the court will consider the parent’s involvement, the children’s emotional and physical needs, each parent’s stability, the children’s preference, and community and family support in making its decision.

Unwed Parents

If the parents had never been married at the time of the mother’s death, then the biological father must first claim his parental rights. The father can do this through a paternity test, a signature on the birth certificate, or a signed acknowledgment of paternity. Once the father establishes paternity, the court will consider the child’s best interest in making its final custody determination.

Deceased Parent’s Will

Sometimes a deceased parent will leave a will or request that a grandparent, aunt, uncle, friend, or relative become the guardian for their children in the event of their death. However, children are not property that a parent can bequeath in a will.

Texas family court will always look to the surviving parent first in making custody determinations. If the court deems the surviving parent fit, it will award custody to that parent regardless of the deceased parent’s request. If there is a question about the surviving parent’s fitness, then the court will take to the decedent parent’s wishes, among other factors, in making its custody determination.

If you need help will a custody issue because of the recent death of your co-parent, family member, or friend, Angela F. Brown and Associates is here to help. Contact us today to schedule a confidential consultation with our law office.

This is the sixth article in our Unthinkable Series. We’ll publish articles about some of the unique custody situations we’ve encountered in our practice with tips to help you overcome similar challenges during the series. Then we’ll host a live Q&A session where you can get your custody questions answered in real-time later in the week. If you have questions about this series or would like to submit a question for our live Q&A, please contact our office here.


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