When the custodial parent dies

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The death of a parent is a tragic event for any child to experience. In Texas, the court will look out for the child’s best interests and place them in a stable environment to help them cope and heal. The new custodian can vary depending on the situation.

Surviving parent

Generally, the court will award custody to the non-custodial parent if the primary caretaker passes away. Typically, the court will want to move the child into the care of a guardian the child knows well. But this may not be the case if the court deems the non-custodial parent “unfit.” If there is a history of abuse or drug addiction, the judge might not grant you custody. Another situation where the biological non-custodial parent might not get custody is if the deceased parent remarried and the new spouse adopted your child. A stepparent adoption usually terminates the biological parent’s rights, especially when it comes to getting custody.

In order for the non-custodial parent to receive sole custody, paternity must be established. This requires:

  • The biological father’s signature on the child’s birth certificate
  • A signed acknowledgment of paternity


In some cases, the court might award custody to the child’s grandparents, especially if the non-custodial parent is absent or uninvolved. The court usually favors the biological parent in these situations, but if that isn’t an option, and if the grandparents are able to raise their grandchild, the court will give them custody. If custody of the child was given to the non-custodial parent and the grandparents don’t think this is in the best interest of the child, they have grandparents’ rights to seek court action to prove the child would be better off in their care.

If the other parent or the grandparents are unable to get custody, then other relatives, like aunts, uncles, or cousins can get custody.

Last wishes

If the deceased parent had a written will, it might stipulate who they feel should receive custody upon their death. Since children are not property, the parent cannot legally bequeath the child to anyone, but it will help the court to make a decision based on the child’s best interests and welfare. Oftentimes, godparents may be indicated in the will, but if they aren’t there will be no legal premise for obtaining custody.

State possession

If there are no other alternatives for the child when their parent dies, then the child could become a ward of the state. This is the least favorable option for the child. Concerned family members do have the right to guardianship if they’re willing to take that step.

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