Legal Question in Family Law in Texas

I was common-law married for 4 years but am now separated and have main custody of our child (neither the marriage nor the "divorce" was done thru formal legal process). I prefer my parents become the guardian of my child if I should pass away and have stated such in my will. But what right does my ex have as my child's biological father. Does he automatically gain custody of our child? Or does what I request in my will hold more legal power?


Asked on 3/07/12, 10:21 am

1 Answer from Attorneys
M. Elizabeth Foley The Law Office of M. Elizabeth Foley

I'm sorry to be the bearer of bad news, but a guardianship designation would only be effective if the father either predecessor you or the two of you died at the same time. It's designed to avoid the problem of both parents dying and the relatives being unable to agree on who should take custody of the kids, which end up in a costly, messy legal proceeding in which a probate court has to decide that. But if one parent dies and the other is still alive, as long as that parent has not had his parental rights taken away and is capable of caring for the child (e.g., not in prison, not in a coma, not missing and unable to be located, not of unsound kind, etc.), then the surviving parent will get custody whether you want him to or not and regardless of whatever guardianship designations you might make.

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Answered on 3/07/12, 11:41 am


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