A custodial parent has both legal and physical custody of a child by court order. The custodial parent is responsible for making decisions and providing a home for the child. Should the custodial parent pass away, a custody modification is in order to protect the best interests of the child.
The Non-Custodial Parent May Receive Custody of the Child
After the death of a custodial parent, the non-custodial parent is often considered first for primary custody of the child. But additional factors may impact the non-custodial parent’s legal rights to primary custody. For example, custody may go to a third-party if:
- The non-custodial parent is unfit: If the court deems the non-custodial parent unfit, the court will consider a third-party arrangement for the child.
- A stepparent adoption has occurred: If the custodial parent remarries and a stepparent adoption occurs, the stepparent has the legal right to assume primary custody of the child.
- A will is present that outlines custody of the child: Courts may consider the custodial parent’s will, if applicable. Regardless, the best interest of the child will always take precedence.
Third-parties who may seek custody include the child’s grandparents, close family friends or other close relatives.
Paternity Rights & Custody
If the non-custodial parent is the father of the child, paternity must be established for the father to receive custody. Without the proper acknowledgment of paternity, the father doesn’t have immediate rights to the child. In Texas, a father may need to undergo court-ordered paternity testing prior to acknowledgment.
How Does the Court Determine Primary Child Custody?
The court will consider many factors when determining who receives custody of the child. For example, the court will assess the relationship with the non-custodial parent or third-party. It’ll weigh the potential guardian’s ability to provide for the child while considering the child’s wishes. In the end, the court will make a decision that reflects what’s best for the child.
Need Help Navigating a Custody Modification? Call Setzer Law Firm.
Whether your ex-spouse has passed away or you simply feel your custody arrangement isn’t working as it should, we recommend consulting with a divorce attorney. To learn more about custody modifications, send us a message.