If the mother dies, does the father automatically get custody?

You might think the answer is, “Obviously, yes.” But if the parents are divorced, the decision can get complicated. In fact, there are several factors that can determine who gets custody after one of the parents dies. If you or someone you know is facing a situation like this, here are some important things to know.

What Does Conservatorship Mean?

This term can be confusing for many divorcing parents. In Texas, conservatorship refers to the legal and physical rules the court issues after the parents divorce.

A parent who is a conservator has the legal right to be involved in making decisions regarding a child’s schooling, medical care, and other issues.

Joint Managing Conservatorship means both parents are involved in making decisions. If necessary, the court will order Sole Managing Conservatorship, meaning only one parent will be given decision-making authority. Whenever possible, the judge will permit both parents to be conservators.

At the same time, there is an important difference between being a conservator and having physical custody. The custodial parent is the person who has primary custody—in other words, the home where the kids live most of the time. The noncustodial parent usually has visitation rights. Thus, it is entirely possible that a biological parent could be a joint conservator, yet not have physical custody.

In a Texas divorce, if one parent is deceased, the surviving parent usually will be given sole managing conservatorship. But as we shall see, there are exceptions.

How Do Texas Family Law Courts Assign Custody?

In divorces, Texas requires a family law court to always do what is in the best interests of the child. For example, if the mother has died, the court will usually decide it is best if the father receives full custody of the kids. 

The catch is, what is “best” for the children may not always seem “fair” to the parents. So if the mother dies, it does not automatically mean the father will get custody.

In addition, be aware that the court may require the biological father to prove his paternity. This may be done through the birth certificate, paternity testing, or by providing legal acknowledgment of paternity.

If the Mother Dies, the Divorce Decree May Decide if the Father Gets Custody

When a marriage ends, occasionally, the divorce decree will address the topic of who will get conservatorship in the event of the other parent’s death. 

In these cases, this decree will be very important in the eyes of the court. But even here, there are some situations where the court may overrule the divorce decree.

What Happens if the Mother Has Remarried?

After a couple divorces, it is not unusual for one or both parents to remarry. Sometimes, the new spouse will adopt the children. In these situations, the court will likely determine that the stepfather’s rights override those of the biological father. Thus, even though the mother has died, the surviving parent does not automatically get custody.

The Mother’s Will May State Who Should Get Custody

If a parent has a written will, this document may address the question. For example, the mother’s will might specifically state that she does not want her ex to get custody of the kids. 

Of course, children are not property, so you can’t “bequeath” your kids the way you might an antique or a car. However, the court will take the mother’s preferences into consideration in awarding custody. 

After the Mother Dies, the Child May Have a Say in Deciding Who Gets Custody

In Texas, a child who is at least 12 years old, an adult can submit a Motion to Confer with Child on behalf of him or her. This gives the child the opportunity to tell the judge who he or she wants to live with—or in this case, to tell the judge he or she does not want to live with the biological father. While this would not be the sole factor in determining how a court might rule, the judge could take it into consideration.   

What Does it Mean to be an Unfit Parent?

Occasionally, the court may rule that a parent is “unfit.” This might happen if, for example, the parent has a history of domestic violence, alcohol abuse, or drug addiction. Or he may have been completely absent and uninvolved in the lives of the children. 

In these situations, it is very possible that the court may deny the father custody after the mother has died. At this point, it is quite likely that other family members will get it involved. 

If the Mother Dies, Can the Grandparents Get Custody?

If the grandparents believe the father is an unfit parent, they may petition the court to get conservatorship. Uncles, aunts, cousins, and other relatives also have the right to petition the courts. If the child has godparents, they also may request to get custody of the child.

As mentioned, courts generally favor the biological parent. So if the custody decision is being challenged in court, the father would have a natural advantage. But the other relatives have a legal right to make their case, and custody does not automatically go to the father.

The Court May Award Custody to the State

If the court has indeed found that the father is an unfit parent, and there are absolutely no other people who can serve as guardians, the children may become wards of the state. As you might guess, this almost always is the least-desirable option. In this case, family members again would have the right to petition the court for guardianship.

We Know Your Children are Your First Priority

Now that you know how complicated custody of the children can get, perhaps you can appreciate the value of having an experienced law firm on your side. The attorneys of The Maynard Law Firm, PLLC, are skilled and experienced in handling custody cases, including situations involving the death of a parent. When it comes to what is best for you your children, don’t count on the court to do the right thing. Call us today at 817-335-9600.