In Texas, parents can designate a guardian for minor children in their wills. However, just like any other decision involving child custody, the court uses the best interest standard to decide who will have possession of a child after a parent’s death.
A declaration of appointment of guardians in Frisco is helpful in the estate planning process and a way for parents to ensure that the legal system knows their wishes for their children. Call our law office to speak with a compassionate child custody attorney today for more information.
Under state law, parents have the right to name a guardian for their minor children in the event of their death. Texas Estates Code § 1104.051 allows Frisco parents to do this through a Declaration of Appointment of Guardian for Minor Children. Parents can also accomplish this by including similar language in their wills.
To meet the requirements in the statute, the declaration needs to clearly state the name of the person or people that the parent wishes to appoint as the guardian of their minor children. In addition to their first choice, parents can also name backup guardians if the first choice cannot serve.
The parents need to sign the declaration and have it notarized or witnessed by two people. Including it with a will package, witnesses, and a notarized self-proving affidavit will also meet the requirements.
Additionally, it is essential to realize that—in most cases—the child’s surviving parent will be the one presumed to get possession of the child. Even if a parent is not involved in a child’s life, unless their parental rights have been terminated or a court has made a finding that they are otherwise unfit, they will be the presumed guardian.
Even single parents should appoint a guardian for their children. The other parent may elect not to take possession of the child, and an appointment of a guardian will give the guardian a better position if they need to fight for the child in a custody dispute.
While state law provides parents the ability to declare their choice of guardian, the choice is non-binding on the court. The statute requires the court to consider the parent’s wishes but still use the best interest of the child.
If the court finds that the proposed guardian is unsuitable or unfit, then they can select another guardian. A Frisco court may choose not to follow a Declaration of Appointment of Guardian for Minor Children for many reasons, such as:
A proposed guardian might be unfit for several reasons. A criminal history, substance abuse issues, or other deceptive behavior can render them unfit. So can financial instability or a general inability to provide the child with a safe and nurturing environment.
To determine who shall have guardianship of the child, the court begins by examining the declaration, including whether it meets statutory requirements. If the proposed guardian is fit and there are no objections from other interested parties, then the court will adhere to the parent’s wishes.
To determine fitness, the court may order an investigation into the proposed guardian. The investigation can include background checks, home studies, or other investigations to determine fitness. If there are any disputed issues, the court can hold a hearing on the matter.
Even though a declaration of appointment of guardian in Frisco is non-binding, it is still a valuable tool for parents who want to plan for the worst. A lawyer can help you by drafting the declaration or including similar language in your will.
Our dedicated family law attorneys can also help you choose a suitable guardian, develop contingency plans, and represent your interests in disputes about guardianship. Schedule a consultation to learn more.
Our Law Firm’s approach to your case is based on individual circumstances. Whether it is a simple negotiated settlement, or it requires an aggressive approach, we will protect and defend your best interests.