Must a Court Honor Parents’ Appointment of Guardian?
The issue that drives most parents to engage in estate
planning is appointing a guardian for their children.
Texas gives parents to right to appoint a guardian for their children in a Will or a separate document called a Declaration of Guardian.
The declaration of guardian by a child’s parents carries significant weight. The Texas Estates Code provides that a court “shall appoint” the guardian designated by the parent 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 child. So although the parents’ preference is not binding on the court, it is highly persuasive.
What would cause a court to reject a parent’s preference?
Well, suppose a court is presented evidence that the designated guardian has been recently convicted of injury to a child or sexual assault. Or perhaps the designated guardian has been convicted of abandoning a child or incest. In such a situation the court will find that person unfit to serve as guardian.
The Estates Code has a list of people who are statutorily ineligible to be appointed guardian which you can read by clicking on the link.