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Laura Dale & Associates, P.C.

Don't grandparents always get custody of orphaned grandchildren?

In the traditional view of the nuclear family, it might seem to be perfectly logical to assume that if a child loses both of his or her parents that one or the other set of grandparents will automatically be granted guardianship of the orphan. It just seems to make sense.

Whether that is how things play out when the issue reaches the courts in Texas is another matter, however. As in all cases where custody of a child is involved, the court seeks to do what is in the best interest of the child. As a result, state law provides the courts with a prioritized list of who should be considered for guardianship or conservatorship when one is needed.

Concerned grandparents can take some comfort in knowing that their right to consideration is high on the list. The first step that has to be cleared, though, is that the court has to determine that a guardian is needed. After that, this is how the list breaks down in assigning custody of a minor:

  • Parents
  • Any person designated in proper legal documents by the ward's last surviving parent
  • The nearest living ascendant relative
  • Next of kin
  • Non-relatives

The line of ascendant relatives is where grandparents fall in this list. You can see that the awarding of guardianship or conservatorship isn't automatic. If the parents of a child have properly executed an estate plan that names some other person as guardian, the court has to consider them for the job first. Even getting grandparent visitation rights with the child may require making the presentation of a case to the court. If the court should find that the designated person isn't qualified to serve or ineligible for any reason, then the grandparents might get the nod to be guardian.

In any case, to understand and exercise your rights, it's wise to speak with an attorney experienced in Texas family law.

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