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  • Writer's pictureEric Beal

What Happens to My Children if My Ex Passes Away?

Some people think that if their Ex passes away, they will have possession of their child automatically. They believe that any Court Orders regarding possession of their child, child support, and limitations on their Rights and Duties will disappear.

That is not necessarily so.

If someone else has “Standing” to ask the Court to name them as a Managing Conservator of your child, you can be left with a possession schedule and list of limited Rights and Duties regarding your own child. Moreover, you can be made to pay support to your child’s now-former Stepparent or even your ex-spouse’s former boyfriend, girlfriend, or fiancé.

Worse yet, up until a recent decision by the Texas Supreme Court in a case called In re C.J.C., being the Parent of your child didn’t give you any advantage over any non-parent that was seeking to become the Primary Managing Conservator of your child.

The Texas Legislature failed to give Parents any advantage over a non-parent in a fight over a child’s life when the battle was taking place in a Custody Modification case. Additionally, the Courts did not find that the advantage existed.

Up until the C.J.C. Case, if the parents had never gotten a divorce and had just split up – either because they were never married or they didn’t bother to get a divorce – whichever one remained living would have a legal advantage over any non-parent trying to take control of their child.

The advantage is called the Parental Presumption. What it means is that if a Parent is involved in a custody fight with a non-parent, the Parent is supposed to win, unless they are shown to be “un-fit.” To beat a Parent in a custody fight, the non-parent would have to overcome the Parental Presumption. They would have to have evidence that the Parent is a bad parent, and it would have to be enough evidence to overcome the Presumption.

But that’s only when the Parental Presumption exists.

And in a bizarre and irrational twist of the law and logic, up until the C.J.C. Case that was only in “Original” actions.

An Original action would be a divorce, or some other first Custody Order put in place by a court regarding a particular child. For example, if the parents were never married, and the mother sought to establish the Paternity of the father, there is usually a custody component of the Order. That would be an Original Action, like a Divorce.

Once a Custody Order was in existence, any new order would be a Modification of that Order. And the law was that Parents had no Presumption in a Modification.

Now they do!

On June 26, 2020, the Texas Supreme Court stated that “a court must apply the presumption that a fit parent—not the court—determines the best interest of the child in any proceeding in which a non-parent seeks conservatorship or access over the objection of a child’s fit parent.”

That now includes Modification actions.

Now, should your child’s other Parent pass away, in Order for any non-parent to take your child from you, they will have to have to prove that you are “unfit.”

Both the U.S. Supreme Court and the Texas Supreme Court have made clear that a “fit” parent is one that “adequately cares for his or her children.” So long as you “adequately care” for your children, the law is that you are a fit parent. Therefore, you, not a Judge, get to decide how your child will be raised, should the other Parent pass away.

This is good news for active parents that are worried that should their ex pass away, their children may be raised by a former step-parent instead of them. It is bad news, however, for single parents with an estranged ex that they fear may enter the picture after they are gone and take a child away from his or her familiar surroundings and extended family.

This entire area of the law is complicated. Legal “Standing” is not always simple to understand. And strategy decisions regarding modifications and the potential modifications should be made using sound legal and practical reasoning. For more on the topic, see other articles on this site, including these: What Can I Do to Protect My Child if I'm Gone? and Best Interest of the Child: How Courts Decide Custody Cases

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