Reed: Can this father be appointed child's guardian?

Sandra Reed

Guest columnist

Tami and Noah divorced in 2020, at which time he was ordered to pay child support for their daughter, Madison, a child with Down Syndrome. This obligation was to remain after she reached adulthood due to her disability.

In 2026, Noah filed to have his child support lowered to give credit for payments Madison had begun receiving in 2025 from Social Security based on his Social Security Disability Insurance (SSDI).

Simultaneously, Noah applied to be named Madison's guardian. Tami contested Noah's appointment as guardian based on his having an adverse interest against Madison through having filed to reduce his child support. Can Noah be appointed Madison's guardian?

Does a conflict of interest prevent a person from serving as a guardian?

Texas Estates Code §1104.354 states that a person may not be appointed guardian if the person is a party or is a person whose parent is a party to a lawsuit concerning or affecting the welfare of the proposed ward, unless the court determines that the lawsuit claim of the person who has applied to be appointed guardian is not in conflict with the lawsuit claim of the proposed ward.

The statute further provides that the person cannot assert a claim adverse to the proposed ward or the proposed ward's property; nor can a person who is indebted to the ward be appointed guardian unless that debt is paid prior to the appointment as guardian.

Is filing to reduce child support a conflict of interest?

Tami took the position that Noah had a conflict of interest because he was attempting to reduce his obligation of child support as awarded by the divorce court. Noah claimed he was only asking that he be given credit for the amount that Madison was getting from SSDI, making the total to Madison the same as the divorce court had ordered.

Analyzing both positions under the statute, Noah had unquestionably filed a suit concerning or affecting Madison's welfare. Under the statute Noah's lawsuit is a conflict unless the court finds otherwise. Tami asserted that Noah's claim for reduced child support fits the prohibition of a claim adverse to Madison and/or her property.

A Texas trial court in a similar case agreed that a father's attempt to reduce child support under similar facts represented a conflict of interest and the appellate court agreed in its decision granted last month. Therefore, based on this case, Noah would not likely be appointed as Madison's guardian.

Sandra W. Reed practices Elder Law in Somervell County, which includes probating of estates, drafting of wills, trusts, powers of attorney and deeds as well as estate and Medicaid Planning. She lives on beautiful Chalk Mountain and can be reached at 817.946.2809 or at sreed1247@gmail.com.

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