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  • Writer's pictureEric Beal

What Can I do to Protect My Child if I’m Gone?

Updated: Jun 10, 2022

NOTE: As of June 26, 2020, the Texas Supreme Court has come out with a decision that causes a major change to the information given in this article. Please see below.

Everyone has health concerns. At least most people do. Some have them all the time, and some only when something serious is "going around." Sometimes people have them because of an illness they are suffering, or some dangerous event is on the horizon.

Mom and Daughter Hugging

Any caring parent wants to make sure that their child is cared for, should something happen to them. But the question is: How do I make sure my child will be taken care of after I'm gone?

It is a simple question without a simple answer.

In fact, the answer to this question could fill up a book or two. The answer will vary depending upon whether Mom and Dad agree and whether something tragic were to happen to Mom and Dad at the same time.

For now, let's assume that Mom and Dad are not a couple and that Mom is the primary caregiver of a minor child. Let's just consider: What will happen to the child if Mom passes away?

1. Can Mom dictate for sure what will happen to the child?

The short answer is: No. There is no paperwork that Mom could fill out or have prepared before passing away, guaranteeing that the person she wants to be in charge of her child's life after Mom is gone will be.

There are Estate Planning papers that could be completed that would tell the Court who the Mom prefers to be the Guardian of her child, but the Court is not bound by the papers. And if there is a fight about it, the Court may or may not do what the Mom wished.

2. Will the child automatically be taken care of by an Active Dad?

No. Although at one point in Texas law, it appeared that if one parent passed away, the other would automatically have custody with little to no worry of "harassment" by anyone else in the child's life, that is no longer the case.

If the child has lived with a Stepparent or anyone else for a certain amount of time, under certain conditions, that person can seek to be named the Managing Conservator of the child.

Texas Family Code Section 102.003, as well as some other statutes tell who has the right to ask to be named as a Managing Conservator of the child. It states, in part:

(a) An original suit may be filed at any time by:

(1) a parent of the child;

(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition;

(11) a person with whom the child and the child's Guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's Guardian, managing conservator, or parent is deceased at the time of the filing of the petition;

(b) In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the Court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit.

3. Can an Estranged Dad seek to be in charge of the child?

Yes. Even if the father of the child has no meaningful relationship with the child or the other parent, he can seek to become the Managing Conservator and Primary Caregiver for the child.

Also, if there has never been a custody case involving the child, the father would have the Parental Presumption to help him win the case. The Court must presume that it is in the Best Interest of the Child for the father to be given custody of the child, as opposed to a non-parent if the child is not already under the jurisdiction of the Court.

Note: This paragraph is no longer true. As of June 26, 2020, in the case of In re C.J.C., the Parental Presumption applies in Texas Child Custody Modification cases. For more on that topic, see: What Happens to My Children if My Ex Passes Away? Interestingly, however, if there is already a custody order in place, the Parental Presumption does not apply. That means that a Judge or Jury is simply to decide which of the parties seeking to be in charge of the child would be best for him or her. It is a Best Interest of the Child Analysis. For more on that, see this Article.

So, what can you do to try to help a decision to be made the way you want it to after you're gone?

A. Filing a case in advance may be counterproductive

One thought may be to "get ahead" of things by filing something in Court to let the Court know who you want to take charge of your child. It seems like it would make sense to go to Court and have someone named as an "alternate" of some sort. One thing that could be considered would be to have maybe a grandparent named as a Possessory Conservator of the child or maybe even a Joint Managing Conservator.

The problem is that to do that, you would need to give the other parent notice of the filing. Once you do that, you may open a "can of worms" that make things worse for you, instead of better.

B. Signing a Preference Form

Having a sound estate plan is always a good idea. As a part of that, you may want to sign a form that indicates what your preference is for your child. You may even want to mention why.

Your statements concerning an estranged parent or grandparent may never make it into Court due to Hearsay rules. Still, if you don't put them down, they will certainly not make it.

C. Gather Evidence

If you have good reasons why someone, in particular, should not have control of your child after you're gone, doing what you can to document the bases may help. Also, make sure that the people you trust know where the documentation is and how to access it after you're gone.

D. Create Standing for the One You Want

This plan may not work for everyone. But consider the Statute cited above. It says that if Mom and child live with the person that Mom wants to take charge, prior to Mom passing away, she may give that person a better chance at becoming the Primary Caregiver after she's gone. Mom would need to pay close attention to the time period of six months that's called for, but it could be done.

Planning for your child's life in the event something tragic happens to you is hard to do. It can be very challenging emotionally. But not doing so can make things far worse for your child if something does happen.

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