Legal Question in Family Law in Texas

Custody of child if not common law married

I have been living with my 7 month old daughters father for 2+ years. I'm not sure what constitutes as Common Law Marriage, but. . . I do not use his name nor do we say that we are each other's spouse. My question is. . . I have recently found out that I have a terminal illness and I need to know what will happen to my daughter when I die. My daughter has her father's last name and he is on her birth certificate I'm not sure that he could or would want to take care when I am gone. How do I ensure that she be taken care of by my mother. Simply put it in a will?

Thank you,


Asked on 9/19/02, 4:39 pm

1 Answer from Attorneys
Jean Sudduth Jean Sudduth, Attorney at law

Re: Custody of child if not common law married

I am sorry to hear of your situation. A will is very important but it will not guarantee who will care for your child. If you and the father and your mother get along well, it is best to talk with both of them and come up with a plan. Your child will thank you for that gesture. Putting your wishes in your will makes it likely that a court will consider your wishes but if the father contests the idea of your mother having primary custody, he may well win the argument. There is a presumption in the law that the best people to care for a child are the biological parents. If this is something you are worried about - talk to an attorney in your area to see what steps you can take while you are still able to deal with the situation. Good luck.

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Answered on 9/20/02, 2:52 am


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