David Chowins

Guardianship of Minor Children

Who Can Serve as a Guardian of Minor Children?

Generally, any person could apply and potentially serve as a guardian of a minor child unless the court finds that one of the following exceptions applies to the applicant.

  • Persons who are minors or who are otherwise incapacitated.      
  • Persons incapable of properly managing or controlling the ward or the ward's estate due to lack of experience, lack of education or "other good reason."
  • Persons the court finds otherwise unsuitable
  • Persons with a history of notoriously bad conduct. While not specifically defined, the following acts are presumed to be "notoriously bad conduct": any sexual offense, including sexual assault, aggravated sexual assault, and prohibited sexual conduct; aggravated assault; injury to a child, elderly individual, or disabled individual; abandoning or endangering a child; terroristic threat; or continuous violence against the family of the ward or incapacitated person.
  • Persons with a conflict of interest with the proposed ward.       Such conflicts could include indebtedness to the proposed ward, being a party to a suit affecting the welfare of the potential ward, or asserting claims adverse to the proposed ward or the ward's property.
  • Persons the proposed ward properly disqualified as part of a valid written declaration made while the proposed ward had capacity to make such a declaration.
  • Person who has not completed the required certification to serve as a guardian. This can be corrected by taking a basic course.
  • Persons who are nonresidents, unless the nonresident obtains a registered agent in Texas for service of process.
  • Persons subject to a protective order for family violence

Priorities in Selecting Guardians of Minor Children

Since more than one person will often be both qualified and willing to serve as a guardian of the minor, Texas courts will give priorities to

certain persons depending upon the circumstances.   The priorities differ depending upon circumstances of the case.

Guardians for Minors with Living Parents

Parents are the natural guardians of minor children's person, but as to minor's estate, the court will appoint one of the parents if the parents do not agree, based on which is better qualified if the parents live together or based on the child's best interest if the parents do not live together. In the case of a minor with only one living parent, that surviving parent will be appointed guardian of the minor's estate.

Guardians for Orphaned Minors

Generally, the minor's grandparents are given priority, then great grandparents, followed by next of kin.   If more than one qualified person within the same priority level applies to be guardian for the minor, the court will choose the person based on the best interest of the minor child. If no member of the minor's family is willing and qualified, the court will appoint another qualified person.

Notwithstanding this, if the minor's last surviving parent, by will or written declaration designates a person to serve as guardian, the court will appoint that person so long as the person is otherwise qualified, is willing to serve as guardian for the minor child and such appointment is not contrary to the child's best interest.

Notwithstanding this, if the minor child is at least twelve years of age, the minor may select a guardian so long as the court finds that the person selected is competent and suitable and that the appointment of the selected person is in the minor child's best interests.