The recent death of Michael Jackson has brought tough custody issues to the nation’s attention. It might be surprising to know that matters of guardianship in Texas are handled in the probate court, not the family court. The Texas Probate Code, Chapter 13 lays out the procedures for guardianship matters of minors after a person’s death or incapacitation.

Part 2 of the Probate Code places primary jurisdiction for these proceedings in a statutory probate court, which is designated under section 25 of the Government Code. If a county does not have a statutory probate court, the Probate Code allows for a county court at law or another statutory court exercising the jurisdiction of a probate court to handle the proceedings. In counties without these courts, the county court can exercise the jurisdiction of a statutory probate court.

Section 610 explains how to decide venue for guardianship appointments. Generally, proceedings should be brought in the county where the proposed ward resides or is located on the date the application is filed or in the county where the principal estate of the proposed ward is located. If there is a living parent who has custody of the minor the proceedings may be brought in the county where that parent resides. If both parents are dead, but the minor was in custody of a deceased parent, the proceedings may be brought in the county where the last surviving parent having custody resided. If both parents died in a common disaster the proceedings should be held in the county where both parents resided, if they resided in the same county and their deaths were simultaneous. If a guardian is appointed by will the proceedings may be brought in the county in which the will was admitted to probate or in the county of the appointee’s residence if the appointee resides in Texas.

Part 3 of the Code covers appointment and qualifications for guardianship. Section 676(b) states that parents are the natural guardians of minors, so if one parent is dead, the surviving parent is entitled to be appointed guardian of the minor children’s estates. The Code also states that the rights of parents who do not live together are equal.

In Texas, the judge will consider and usually appoint the guardian designated in a person’s will or written declaration but are not bound by such designation. If the court finds the designated guardian is disqualified, dead, refuses to serve, or would not serve the best interests of the minor children the court will not appoint that person guardianship. Instead, the court can appoint any eligible alternate designated guardian. If there are none the court will appoint another qualified person as guardian following the guidelines provided in the Code. Sec. 676(e) and 677A(e).

Section 676(c) explains how the court should appoint guardianship to a minor orphan if the last surviving parent did not appoint a guardian. If this is the case, the nearest ascendant in the direct line of the minor is entitled to guardianship of both the person and the estate of the minor. If there are more than one ascendant in the same degree, one of the ascendants shall be appointed as guardian based on what is in the best interest of the children.

This is by far an exhaustive description of Texas guardianship laws. The Texas Probate Code in its entirety can be read online at http://www.statutes.legis.state.tx.us/?link=PB