Legal Question in Family Law in Texas
Custody when spouse dies
I am getting married to a girl with a 2 year old son. The father is in another state. He pays child support, he never calls nor does he have any visitation rights. In the unlikley event that my future wife should die 10 years down the road,(making the child 12) who will the court most likley assign custody of the child to. Can she put it in a Will that she wants me to have custody? Is adoption the only alternative? Can he contest it even if the mother wants me to adopt. If my wife should die I do not want him comming around and taking the boy that I have raised as my own to be taken from me by a man who doesnt even know him.
5 Answers from Attorneys
Re: Custody when spouse dies
You have no rights to the child absent an adoption. The biological father could retrieve the child if the mother passed away unless you adopt the child, in which case you are, in the eyes of the law, the child's father. The biological father can contest the adoption, but it may be that he would not because a result of the adoption would be a cessation of his obligation to pay child support.
Re: Custody when spouse dies
At age 10, the child can choose who he wants to live with by petition to the court. Without this legal action, custody of the child would revert to the father. If you want the child, you better consider adoption.
Re: Custody when spouse dies
Your wife can put it in her will, but the child
will go to the bio. dad unless you can prove it
would not be in the best interest of the child.
call me.
Re: Custody when spouse dies
You have a tough situation because right now, you have NO LEGAL relationship with the child. I understand your self-imposed moral obligation.
Perhaps, depending on other factors, the biological father would agree to your adopting the child - this would end his child support obligation. If he doesn't agree, you will have a difficult time terminating his parental rights.
Your wife can execute a choice for guardianship upon her death - but IT IS NOT ENFORCEABLE as to the biological father. Upon her death, since he is the only living parent, he is entitled to possession of the child.
If he stops paying child support for a period of time, you may be able to use that as a basis to obtain a voluntary relinquishment, or perhaps as grounds to terminate.
It's usually best to try to find out what his feelings are about the situation. If he really has no interest in the child, and wants to save money, he might agree.
Re: Custody when spouse dies
If you live in Harris County, normally the judges want you to be married to the mother for over a year before you begin the termination and step-parent adoption.
However, if he is current in his child support, the courts in Harris County may not termiante his parental rights if he decides to contest the termination.
If you have any questions, please feel free to give me a call.
Best of luck to you.
Fran Brochstein
713-847-6000
www.FamilyLaw4U.com
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