Texas Temporary Guardianship Agreement

Introduction

Key Things to Know

1. 1

   The instrument is the Authorization Agreement for Nonparent Adult Caregiver under Tex. Fam. Code ch. 34. The parent (one or both) and the adult caregiver sign it, each before a notary. DFPS Form 2638 is the agency form; use of it is not required by the statute.

2. 2

   The term is six months from the date the parties enter into the agreement and it renews automatically for six-month terms (Tex. Fam. Code 34.0075). A parent may choose an earlier expiration date. Ch. 34 states no cap on the number of renewals.

3. 3

   If only one parent signs, the parties must mail the other parent, if living and whose parental rights have not been terminated, a copy by certified mail, return receipt requested, and another by first-class mail within 10 days of signing, or the agreement is void. A narrow exception applies where the other parent has no court-ordered possession or access and a documented act of family violence or assault.

4. 4

   A parent may not sign without a written court order if there is a court order or pending suit affecting the parent-child relationship, a pending custody, possession, placement or access case, or a court with continuing, exclusive jurisdiction. An agreement made in violation is void. Only one agreement may be in effect at a time.

5. 5

   The agreement covers a closed list: medical, dental, psychological and surgical treatment and immunization, health insurance, enrollment in day care or school, extracurricular activities, a learner's permit, driver's license or state ID, employment, public benefits, and state and federal ID documents. It does not cover abortion or emergency contraception.

6. 6

   This is not a court guardianship. The caregiver does not gain legal custody or a conservator's rights, and the parent's rights are unchanged; the parent may resume custody on demand. A non-party who relies in good faith, without actual knowledge that the agreement is void, revoked or invalid, is protected from civil and criminal liability if the agreement is completed as chapter 34 requires.

7. 7

   Use the court route instead if a court case already exists or the child needs care beyond what an agreement can give. A case over a parent's objection is contested. Options include temporary guardianship (Estates Code ch. 1251, generally 60 days, longer during a contest) and, for an eligible relative caregiver with no signed parental document, a temporary authorization order (Fam. Code ch. 35), which must be dismissed if a parent objects; see the guardianship of a minor petition page. Report abuse or danger to the child to the Texas child protective agency, and take disputes between parents to a custody or parenting plan.

Texas Requirements for Temporary Guardianship Agreement

• Parent and Caregiver Both Sign Before a Notary

  The authorization agreement must be signed and sworn to before a notary public by the parent (one or both) and the adult caregiver, and must include space for the notary's signature and seal (Tex. Fam. Code 34.003(a)(11), 34.004(a)).

• Six-Month Term That Renews Automatically

  The agreement is for a term of six months from the date the parties enter into it and renews automatically for six-month terms. A parent may state an earlier expiration date (Tex. Fam. Code 34.0075, 34.003(a)(10)).

• Mail to a Non-Signing Parent Within 10 Days

  If both parents did not sign, the parties must mail the non-signing parent, if living and whose parental rights have not been terminated, a copy by certified mail, return receipt requested, and another by first-class mail within 10 days of execution, or the agreement is void, subject to the family-violence exception (Tex. Fam. Code 34.005(a), (a-1), (a-2)).

• Blocked by a Court Order or Pending Suit

  A parent may not execute the agreement without a written court order if there is a court order or pending suit affecting the parent-child relationship, pending custody, possession, placement or access litigation, or a court with continuing, exclusive jurisdiction. An agreement made in violation is void (Tex. Fam. Code 34.004(b), (c)).

• Closed List of Delegable Acts

  The agreement may authorize medical, dental, psychological and surgical treatment and immunization, insurance, school and day care enrollment, activities, a learner's permit, driver's license or state ID, employment, public benefits, and state and federal ID documents (Tex. Fam. Code 34.002(a)).

• Abortion and Emergency Contraception Excluded

  The agreement does not authorize an abortion or the administration of emergency contraception, and it does not give the caregiver a conservator's or guardian's rights or legal custody (Tex. Fam. Code 34.002(c), 34.003(b)(5), 34.007(b)).

• Good-Faith Reliance Protection

  A non-party who relies in good faith, without actual knowledge that the agreement is void, revoked or invalid, is not subject to civil or criminal liability or professional discipline if the agreement is completed as chapter 34 requires (Tex. Fam. Code 34.007(a)).

• Revocation by Notice and County Clerk Filing

  A written revocation is effective only if the party gives each party written notice and files it with the required county clerk and the clerk of each court with continuing jurisdiction, a pending custody case, or a guardian order. Either parent who signed may revoke alone (Tex. Fam. Code 34.008(c), (e)).

• Any Authorized Adult May Serve

  The adult caregiver is any adult whom a parent has authorized to provide temporary care for the child; chapter 34 states no relative requirement (Tex. Fam. Code 34.0015(1)).