What Happens When the Custodial Parent Dies

Child custody and support remain one of the more contentious details of divorce proceedings in Texas. The state of Texas will seek to uphold the parental rights of both parents. This as long as they have no record of abuse.

At the same time, the state will also emphasize the responsibility of the parents to look after their children. Thus, even when the parent does not become the primary custodian, Texas courts still impose child support conditions.

When the Custodial Parent Dies

The issue of child support is secondary if it’s the custodial parent who dies. The first thing to settle in this situation is the custody of the child. As always, Texas law does not have a strict succession order to adhere to. The Family Court understands that each case is unique.

It would be better if the co-parents have already discussed this matter and already have a succession plan as part of their agreement in case one or both of them would pass on. There are many cases where there is no arrangement prepared.

Nevertheless, the likely candidate for custody of the child is the other parent. If the other parent is willing to take custody and there are no restrictions imposed by the court for them to assume custody, then they are the most likely candidates.

In this case, the non-custodial (also called obligor) parent will become the custodial parent. Thus, they would no longer be obliged to child support since they are now in charge of the child’s residence and daily expenses. Since the tables are turned, the new custodial parent could seek child support from the deceased parent’s estate.

If Custody is Awarded to a Non-parent

There are cases when the child is not entrusted to the non-custodial parent. It could be that the parent refuses as they would not be able to give the time and attention to the child (which is probably why they were not awarded custody in the first place), or the court itself chooses that it is better for the child’s welfare to live with someone else.

In this case, whoever takes custody of the child will be eligible to solicit the child support from the obligor parent. The new custodian can also seek support from the estate of the deceased parent. We must remember that the custodian is not the child’s parent, so they are not technically responsible for the child’s daily expenses, so they should receive help from both sides. Parental responsibility does not end with the death of the parent.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at timothy.hutton@austintexaslegal.com

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