If a Custodial Parent Dies : Who Will Have Custody of the Child?
When the custodial parent of a child dies, in the state of Texas, not only is the child and family union devastated, but now is presented the difficult issue of who will become the child’s guardian. Who are the possible candidates that may be legal guardians?
- Non- Custodial parent, if paternity is acknowledged
- Grandparents
- Other relatives
- Godparents, Family friends, Neighbors
- State Foster System
Usually, the surviving non-custodial parent will have an automatic right to custody of the child. Texas law favors a child having a solid relationship with both parents and in the event of death, the living parent will take over permanent exclusive custody of the child. What factors should be considered in the child’s best interest that could determine custody by the surviving parent if he/she is not appropriate for the child?
- Did the court, after the divorce, terminate your parental right in a legal proceeding? If the non- custodial parent had legally been terminated of his/her parental rights this is binding and the terminated parent WOULD NOT be granted permanent custody of the child.
- What if the custodial parent remarried and the new stepparent legally adopted the child? If the child was legally adopted by the stepparent and the non-custodial parent had waived their parental rights, the stepparent would be granted permanent custody of the child.
- What if the non-custodial parent has acknowledged parentage, but paternity has not been establish? To be entitled to custody of the child, the father would first claim parental rights through paternity testing to determine if he is the biological father of the child or if he has signed the child’s birth certificate. After Paternity is established, a separate legal proceeding may need to be initiated to override the terms of the mother’s will.
- What if the Custodial Parent created a will that stated the grandparents/godparents would take over as the legal Guardians of the child in the event of death? Many parents will request a particular person or group, such as grandparents, relatives, or godparents to become guardians for their minor children in the case of their demise, but a child is not a piece of property to give away to others when the other biological parent is living. The judge will view what is in the best interest of the child and will always first look at the surviving parent. If this parent meets basic standards the child will live with this parent. If the surviving parent cannot serve the child’s best interest, then the judge will consider the guardian designated in the deceased parent will.
Nacol Law Firm P.C.
tel: (972) 690-3333
Texas SB 250 Protective Orders for Stalking Victims
Texas SB250 bill provides stalking as grounds for a protective order. All persons who are victims of stalking have the right to a protective order against their stalker without requiring that the alleged stalker first be arrested for the crime. This legislation also eliminates the need for the stalker to be related, have had relations, or children with the victim before a protective order can be placed. Now more victims who have been exposed to cyber bullying attacks or fixations by strangers and feel that they could be subjected to serious bodily injury or death can petition the court for a protective order.
If you are a victim of stalking, find a lawyer who is familiar with the Texas SB250 Stalking Law. The victim can petition the county court in either their or the stalker’s county with an affidavit on the stalking situation.
If the court finds the information in the application for a protective order that there is a definite and present danger of a sexual assault, stalking, or other harm to the victim, the court, without a hearing, may enter a temporary ex parte order for the protection of the victim and other members of the victim’s family or household for a period up to 20 days without notifying the stalker. If the stalker violates the protective order, the victim should immediately call the police who will arrest the stalker for violating the order.
By allowing victims to seek protection from any type of stalker, no matter of relationship, Texas has provided a layer of protection to their citizens.
Texas SB250 Stalking Law became effective on 9/1/2012,
Modern Marriages and Pre-Nuptial Agreements : Smart Move
You and your future spouse are planning your life together and will soon legally marry to become man and wife. Are there personal or family situations that should be legally addressed in advance to enhance future happiness and preclude avoidable legal entanglements?
More and more couples are signing prenuptial marriage agreements to make their legal transition to married status easier and more stable from the onset. In a 2016 American Academy of Matrimonial Lawyers Survey, more than 60% of the legal respondents said that they have seen a substantial increase in clients seeking “PRE-NUPTIAL AGREEMENTS” in the past three years. Many attorneys attributed this increase to both spouses working and financially supporting the family unit, couples dealing with financial inequality or couples of great wealth. These couples want to put all their financial cards and related issues on the table before they walk down the aisle to avoid potentially great expense and prolonged painful litigation should the marriage fail.
Texas is a “Community Property State” and in the event of a divorce will divide property equally between the divorcing parties based on the assumption that all assets acquired during their marriage belongs evenly to both parties. With the continued high divorce rates and many boomers/seniors remarrying in larger number, many couples are considering legal marital contracts to avoid a difficult expensive divorce.
A Pre-Nuptial Agreement allows prospective spouses to specifically define the rights and obligations to each other in advance and further allows spouses to decide their future marital property rights with relativity minimal judicial actions or involvement.
A Texas Pre-nuptial Agreement can cover any matter except one that:
- Violates Public Policy or a statute imposing criminal penalties
- Adversely affects a child’s right to support
- Defrauds a creditor
(Texas Family Code 4.003(a)(8), (b),4.106(a))
WHEN SHOULD YOU CONSIDER A PRE-NUPTIAL AGREEMENT? In today’s world many couples feel the need to have a legal contract in place which will protect their approaching marriage and conflicting financial situation without causing a disastrous and costly divorce.
What are some of the more important situations for consideration in a Pre-Nuptial Agreement?
- A couple who has a separate estate plan for their families to inherit their assets.
- One of the partners has substantial assets that needs to be kept independent from their future spouse’s
- One of the partners owns a business or has multiple business or interest in investments and needs to keep this independent from the future spouse.
- One of the partners may have financial/creditor problems and the other person needs protection. This could include student loans or large credit card debt.
- There may be special considerations to settle, such as pets, special family items, or even frozen eggs or sperm, that need to be addressed before the wedding.
- One partner’s money habits and styles may be totally different from the other partner and this situation needs to be settled in advance of marriage to the satisfaction of both future spouses.
Among the permissible provisions that partied can list in a prenuptial agreement are as follows:
- Rights and obligations of any interest, present or future, legal or equitable, vested or contingent, in real or personal property.
- Right to manage, control and dispose, by agreement, property upon separation of the married parties, dissolution of the marriage, death of either party, or other agreed event.
- A provision that modifies or eliminates spousal support.
- Specific matters related to prospective spouses, including personal rights and obligations that are not in violation of state laws.
- Choice of a state or country law that will govern the Pre-Nuptial Agreement.
- Creation of a Will or Trust.
- Disposing of the Estate upon the death of one of the spouses. Also, ownership rights and disposition of benefits from a life insurance policy upon death.
- Waives right of one party to occupy the family homestead after the other party dies.
When you have decided that you need to set up a Pre-Nuptial Agreement now where do you begin? You need to find a knowledgeable attorney who can help you with the preparation of the binding marital contract. Both you and your fiancé need separate attorneys to make sure you both are fairly and independently represented in this matter. This is a very serious and legally binding agreement and should be considered an enforceable binding contract. Don’t be one of many spouses who wakes up from their sweet wedding dream to find that the pre-nuptial agreement they agreed upon is far from what they wanted or thought it would be.
Mark A. Nacol
Nacol Law Firm P.C.
(972) 690-3333
Boomer / Senior Divorce : I Love and Respect My Spouse But…
The decision has been made to divorce. What is next? Get prepared financially! The National Association of Divorce for Women & Children recent survey states the 41% of all participants say dealing with finances, debt and security were the most challenging parts of finalizing a divorce. Asset division was second and Child Custody came in third.
Here is what you may reasonably expect in the future:
- You are not a legal couple anymore. Your retirement funds could be cut in half. The National Center of Health Statistics stats that most women see a 45% post-divorce drop in their standard of living.
- Health Insurance: one of the most serious problems facing the newly divorced boomer / senior. Many spouses are dependent on the other for health insurance and when people divorce, many times the insurance cost is much larger.
- Retirement and Social Security: when separating funds in regard to retirement assets and social security funds there should be a legal document to assure each partner is awarded the correct amount. Also if you are over 62 and have been married over 10 years, survivor benefits and special rules regarding Social Security will have to be reviewed.
- Alimony / Spousal Maintenance may be awarded after a long-term marriage. In many states the laws have changed and this monetary amount leaves many ex-spouses with much less than expected.
- Legal and financial fees may be significant in large estates but are required to make smart binding decisions in separating assets and property. “Keeping the House” may be an emotional victory, but is it a wise financial decision for you considering your new more limited life style?
You may feel like you are growing older, and are ready to go it alone, but is this the right financial decision for you?
It is sometimes feels but is not easier to say good bye and break the strings of the past. What to think about before you go:
- Your family and friends – do you have their support or will you have to go alone? Usually divorce partners will lose some friends so are you ready to develop a new group of friends with a new life style?
- Is your financial house in order and do you understand the change of life style that is possible?
But if you seek a divorce, contact a knowledgeable attorney who can help get you through this serious time in your life. Right and smart decisions are critical and will govern your life in the future.
The Presumption of Fatherhood in Texas
The presumption of fatherhood in Texas is strong, and positively impacts a father’s claims upon his children. Without the presumption of fatherhood, a father would face significant barriers in asserting his rights. The presumption of fatherhood supports access, rights, and duties, allowing the father to assert his right to help raise his child as he deems fit.
The presumption of fatherhood is determined in the Texas Family Code 160.204 and states that a man is presumed to be the father of a child regardless of genetic testing in the following circumstances:
- If the man is married to the mother and the child is born during the marriage;
- If the child is born before the 301st day after the day the marriage is terminated by death, annulment, invalidity, or divorce;
- If the man is married to the mother before the birth of the child in apparent compliance with the law;
- If the man married the mother after the birth of the child in apparent compliance with the law and voluntarily asserted his paternity of the child by:
a. The assertion in a record filed with the vital statistics unit
b. The man is voluntarily named as the Child’s father on the child’s birth certificate or
c. He promised in a record to support the child as his own occurrence
5. The man during the first two years of the child’s life resided in the household in which the child lived and the man represented to others, (held out) that the child was his own.
These five factual series support the presumption of a father without actually filing a Suit Affecting Parent Child Relationship.
Only the 5th element pertains to men that are not married to the mother of the child. A man that is not married most likely will not legally be presumed the father even if the child is the man’s genetic son or daughter. This is a shock to many men if the relationship between the mother deteriorates and the mother decides to leave town. The father of the child will have no enforceable rights to his genetic son or daughter absent the filing a suit to establish the paternity of the father.
If a father is not married to the mother of his child, then the only option to the father is that he must continuously live with the mother and his child for the first 2 years of the child’s life and hold out to the public that the child is his own. This usually does not happen because of the stress involved in the beginning stages of raising a child and other factors. The father may have an active role in his child’s life but if he does not live with his child continuously for the first 2 years of his child’s life, then the mother may take exclusive possession of his child and move anywhere in the U.S. and the father will have no way to stop her unless he petitions the court for emergency relief, which will likely result in genetic testing.
If you have fathered a child out of wedlock and have not continuously lived with your child for the first 2 years of the child’s life, then it is wise to secure a genetic test and file suit to adjudicate yourself as the father of your child so you may receive the rights of a parent as a matter of law. It is prudent to contact an experienced family law attorney for the process because the innate right to see, guide, and teach your child is too important to forfeit. A man never knows what the future holds in a relationship, and if you have a child out of wedlock it is important to protect your right to be a part of that child’s life. To do this seek an experienced attorney to ensure your right is not infringed or sabotaged.
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Friday, 8:30am – 5pm
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
