The courts have made it clear that parents have a fundamental right to custody of their children.  For this reason, grandparents sometimes are denied visitation with their grandchildren when their child – the children’s mother or father – dies.  But what happens when the parents are divorced and the parent who had custody of the children dies?

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies – unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children’s welfare.

This ruling came about when a custodial mother died.  The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas.  The maternal grandparents filed suit to obtain legal custody of their grandchildren.  The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is “a serious immediate question concerning the welfare of the child.”  The grandparents argued that the children should have remained “with the people who can provide them the most comfort:  their grandparents and their nanny.”  But the San Antonio Court ordered the children returned to their father.  It held that “merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child’s welfare in the habeas corpus context.”