In Texas, How do I Get Guardianship of a Minor?
Full Question:
My sister-in-law died 3 years ago and left behind a then 4 year old boy. Since then, my elderly mother-in-law has been caring for him. They live in Mississippi. They are moving in with me soon in the state of Texas. What do I need to do to obtain guardianship? The child's father agrees to sign anything we need to legally care for the child.
06/09/2009 |
Category: Guardianship |
State: Texas |
#16915
Answer:
Generally, the law of the child's residence will apply. A parent may appoint a guardian for a minor by written declaration in Texas in the event of the paren't death or incapacity. If the parent is not incapacitated, it may be necessary to petition the court to appoint a guardian. In such a case, it will be a matter for the court to determine, based on al lthe facts and circumstances involved, that the appointment is in the child's best interests. Please see the forms at the links below.
The folowing are TX statutes:
§ 677A PROB. CODE. Written Declarations by Certain Parents to
Appoint Guardians for Their Children
(a) A written declaration appointing an eligible person to be guardian
of the person of the parent's child under Section 676(d) or 677(b) of
this code must be signed by the declarant and be:
(1) written wholly in the handwriting of the declarant; or
(2) attested to in the presence of the declarant by at least two
credible witnesses 14 years of age or older who are not named as guardian
or alternate guardian in the declaration.
(b) A declaration that is not written wholly in the handwriting of the
declarant may be signed by another person for the declarant under the
direction of and in the presence of the declarant.
(c) A declaration described by Subsection (a)(2) of this section may
have attached a self-proving affidavit signed by the declarant and the
witnesses attesting to the competence of the declarant and the execution
of the declaration.
(d) The declaration and any self-proving affidavit may be filed with
the court at any time after the application for appointment of a guardian
is filed and before a guardian is appointed.
(e) If the designated guardian does not qualify, is dead, refuses to
serve, resigns, or dies after being appointed guardian, or is otherwise
unavailable to serve as guardian, the court shall appoint the next
eligible designated alternate guardian named in the declaration. If the
guardian and all alternate guardians do not qualify, are dead, refuse to
serve, or later die or resign, the court shall appoint another person to
serve as otherwise provided by this code.
(f) The declarant may revoke a declaration in any manner provided for
the revocation of a will under Section 63 of this code, including the
subsequent reexecution of the declaration in the manner required for the
original declaration.
(g) A declaration and affidavit may be in any form adequate to clearly
indicate the declarant's intention to designate a guardian for the
declarant's child.
[omitted]
(h) In this section, "self-proving affidavit" means an affidavit the
form and content of which substantially complies with the requirements of
Subsection (g) of this section.
§ 676 PROB. CODE. Guardians of Minors
(a) Except as provided by Section 680 of this code, the selection of a
guardian for a minor is governed by this section.
(b) If the parents live together, both parents are the natural
guardians of the person of the minor children by the marriage, and one of
the parents is entitled to be appointed guardian of the children's
estates. If the parents disagree as to which parent should be appointed,
the court shall make the appointment on the basis of which parent is
better qualified to serve in that capacity. If one parent is dead, the
survivor is the natural guardian of the person of the minor children and
is entitled to be appointed guardian of their estates. The rights of
parents who do not live together are equal, and the guardianship of their
minor children shall be assigned to one or the other, considering only
the best interests of the children.
(c) In appointing a guardian for a minor orphan:
(1) if the last surviving parent did not appoint a guardian, the
nearest ascendant in the direct line of the minor is entitled to
guardianship of both the person and the estate of the minor;
(2) if more than one ascendant exists in the same degree in the direct
line, one ascendant shall be appointed, according to circumstances and
considering the best interests of the minor;
(3) if the minor has no ascendant in the direct line, the nearest of
kin shall be appointed, and if there are two or more persons in the same
degree of kinship, one shall be appointed, according to circumstances and
considering the best interests of the minor; and
(4) if no relative of the minor is eligible to be guardian, or if no
eligible person applies to be guardian, the court shall appoint a
qualified person as guardian.
(d) Notwithstanding Subsection (b) of this section and Section 690 of
this code, the surviving parent of a minor may by will or written
declaration appoint any eligible person to be guardian of the person of
the parent's minor children after the death of the parent or in the event
of the parent's incapacity.
(e) After the death of the surviving parent of a minor or if the court
finds the surviving parent is an incapacitated person, as appropriate,
the court shall appoint the person designated in the will or declaration
to serve as guardian of the person of the parent's minor children in
preference to those otherwise entitled to serve as guardian under this
chapter unless the court finds that the designated guardian is
disqualified, is dead, refuses to serve, or would not serve the best
interests of the minor children.
(f) On compliance with this chapter, an eligible person is also
entitled to be appointed guardian of the children's estates after the
death of the parent or in the event of the parent's incapacity.
(g) The powers of a person appointed to serve as the designated
guardian of the person or estate, or both, of a minor child solely
because of the incapacity of the minor's surviving parent and in
accordance with this section and Section 677A of this code terminate when
a probate court enters an order finding that the surviving parent is no
longer an incapacitated person.
§ 601 PROB. CODE. Definitions
...
14) "Incapacitated person" means:
(A) a minor;
(B) an adult individual who, because of a physical or mental
condition, is substantially unable to provide food, clothing, or shelter
for himself or herself, to care for the individual's own physical
health, or to manage the individual's own financial affairs; or
(C) a person who must have a guardian appointed to receive funds due
the person from any governmental source.
§ 682 PROB. CODE. Application; Contents
Any person may commence a proceeding for the appointment of a guardian
by filing a written application in a court having jurisdiction and venue.
The application must be sworn to by the applicant and state:
(1) the name, sex, date of birth, and address of the proposed ward;
(2) the name, relationship, and address of the person the applicant
desires to have appointed as guardian;
(3) whether guardianship of the person or estate, or both, is sought;
(4) the nature and degree of the alleged incapacity, the specific areas
of protection and assistance requested, and the limitation or termination
of rights requested to be included in the court's order of appointment,
including a termination of:
(A) the right of a proposed ward who is 18 years of age or older to
vote in a public election; and
(B) the proposed ward's eligibility to hold or obtain a license to
operate a motor vehicle under Chapter 521, Transportation Code;
(5) the facts requiring that a guardian be appointed and the interest
of the applicant in the appointment;
(6) the nature and description of any guardianship of any kind existing
for the proposed ward in any other state;
(7) the name and address of any person or institution having the care
and custody of the proposed ward;
(8) the approximate value and description of the proposed ward's
property, including any compensation, pension, insurance, or allowance to
which the proposed ward may be entitled;
(9) the name and address cf any person whom the applicant knows to hold
a power of attorney signed by the proposed ward and a description of the
type of power of attorney;
(10) if the proposed ward is a minor and if known by the applicant:
(A) the name of each parent of the proposed ward and state the parent's
address or that the parent is deceased;
(B) the name and age of each sibling, if any, of the proposed ward and
state the sibling's address or that the sibling is deceased; and
(C) if each of the proposed ward's parents and siblings are deceased,
the names and addresses of the proposed ward's next of kin who are
adults;
(11) if the proposed ward is a minor, whether the minor was the subject
of a legal or conservatorship proceeding within the preceding two-year
period and, if so, the court involved, the nature of the proceeding, and
the final disposition, if any, of the proceeding;
(12) if the proposed ward is an adult and if known by the applicant:
(A) the name of the proposed ward's spouse, if any, and state the
spouse's address or that the spouse is deceased;
(B) the name of each of the proposed ward's parents and state the
parent's address or that the parent is deceased;
(C) the name and age of each of the proposed ward's siblings, if any,
and state the sibling's address or that the sibling is deceased;
(D) the name and age of each of the proposed ward's children, if any,
and state the child's address or that the child is deceased; and
(E) if the proposed ward's spouse and each of the proposed ward's
parents, siblings, and children are deceased, or, if there is no spouse,
parent, adult sibling, or adult child, the names and addresses of the
proposed ward's next of kin who are adults;
(13) facts showing that the court has venue over the proceeding; and
(14) if applicable, that the person whom the applicant desires to have
appointed as a guardian is a private professional guardian who is
certified under Subchapter C, Chapter 111, Government Code, and has
complied with the requirements of Section 697 of this code.
