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Can the custodial parent "leave the child to her Mother" in a will without the other parent's consent?

Houston, TX |

No details, this is something that was thrown at me recently. Thank you for any answers you may be able to provide.

Attorney Answers 3

Posted

Yes. And No.

First, children are not property. They are not "given away." A parent can designate a guardian of minor children, both physical custody and who is to take care of the money. They do not have to be the same person.

Unless the other parent has had their parental rights terminated, custody of the children will go to the other parent regardless of what the now deceased parent said.

The maternal grandmother will not have a say in it.

Hope this helps. Good luck.

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Asker

Posted

That is exactly what I thought, thank you very much!

Mark Allen Land

Mark Allen Land

Posted

You are most welcome.

Posted

You can do it but it does not mean that it will happen if you die. The other parent's rights are superior to anyone else on the planet. You probably want to sit down in person with a family law attorney and discuss your options.

In the past, I have added a third party as an additional conservator in a modification by a Judge when the mother was ill and was probably going to die. In my cases, dad was "missing" and not an option to take the children upon mom's death. It was an unusual step, but in my cases and with preparing the judge with the facts, we were able to get it done. If this is your case, then you will need an experienced and knowledgeable family law attorney to help you. Don't hire a newly licensed attorney that has never done an unusual case like this before - you need someone that's been around awhile to handle a case like this and that knows the judge and can "gently prepare" the judge for your unusual situation.

Fran Brochstein has over 20 years legal experience & enjoys educating people about Texas laws and mediation. She has a full-time family law mediation practice in the Houston area. She will do face-to-face one-time consultations for $175/hour -- if you mention that you saw this special price on avvo. If you found this answer "helpful" or "best answer", please select the button to show your appreciation. Please understand that Fran Brochstein's reply to your question in no way creates an attorney-client relationship. You are strongly encouraged to consult with an attorney in your county in person about your specific legal problem. You can contact her at 713-805-9591 - 7 days a week on her personal cell phone.

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Mark Allen Land

Mark Allen Land

Posted

As always, Ms. Brochstein offers excellent suggestions.

Asker

Posted

Well, I didn't want get into detail, but since you offered sound advice, I will. The girl my husband was involved with before we got married has told my husband that "If something should happen to me, I left the child to my mom or sister in my will, so he'll never come to you." I figured since he still has parental rights, she couldn't do that. So I apperciate the feedback.

Fran Brochstein

Fran Brochstein

Posted

She is naive. If the father is an "active" father in the child's life, then he will probably get custody. So I advise him to keep the name of an excellent family law attorney close by at all times and have $10,000-$15,000 on hand to be prepared for a custody battle. He needs to keep a diary/calendar of when he has the children & witnesses ready, willing and able to come to court to testify to his behalf as to the fact that he is a hands-on father. He needs to recognize that if she dies, he needs to move quickly to get custody of the children. If he fails to act, then any person (non-relative) could get custody if the person had care, control & custody of the children of close to 6 months in their home. So if he takes no action, he could lose custody of the children. I hope this is helpful info for you. If you need more, then you need to sit down in person with a family law attorney & discuss your particular case face-to-face and ask detailed questions.

Asker

Posted

I didn't see a "helpful" button on here, so I couldn't hit the button to acknowledge that, but this is extremely helpful. I think the costodial parent is just trying to be mean/vindictive. But the info you gave me shows that there is something that can be done, if, Heaven forbid, something happens to her.

Posted

The custodial parent can put that in a will, but it will not necessarily be what is done. The other parent has a greater right than anyone else to have custody of the child and becomes the custodial parent on the death of the other parent (unless the other parent's parental rights were terminated in a court proceeding). If the surviving parent prefers the children live with the grandparent, then a "friendly" lawsuit would be filed by the grandparent asking for custody. The final order would state grandparent is the conservator (has custody) and the surviving parent has whatever visitation that parent and the grandparent agree to. Child support would usually be ordered as well.

I recommend that you consult with an attorney regarding this matter.

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Asker

Posted

Thank you for your answer and making it quite clear.

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