Will your gender, sexual orientation or religion impact your Texas child custody case?

Are you a father who has heard from friends and family that you don’t stand a chance to be named as the primary conservator of your child because the law gives a preference to mothers in this regard? Are you a mother who thinks that it’s “in the bag” that your child is going to be able to live with you primarily just because you’re a woman? These are common assumptions that clients hold heading into family law cases. The question is: are these assumptions accurate?

In today’s blog post from the Law Office of Bryan Fagan, we will be discussing how different aspects of who you are as a person- your gender, your sexual orientation, your religion- can potentially play a role in your child custody case. I don’t mean to give you the impression that these factors will play a tremendous role in your case. However, believing that your judge would not consider them whatsoever is also unrealistic. Today we will seek to discuss them in greater detail so that you can prepare yourself and your case to handle whatever circumstances you find yourself in.

Are mothers really given a preference when it comes to being named as the primary conservator?

One of the most important parts of a child custody case is deciding which parent will be able to determine the primary residence of your child. Many parents will go to a trial just to have this one subject decided because they were unable to arrive at a settlement that was satisfactory to both parties. In an especially “close” case, where both parents are suitable primary caregivers to a child it can be a difficult decision for a judge to make.

Many fathers will come into our office for a consultation and will bring up this subject. Their belief, almost across the board, is that courts give preference to mothers when it comes to being able to win primary custody. It is just something that is out there in our culture- whether it is from the media or personal experiences. Men are more or less resigned to the belief that when push comes to shove a judge will award a mother primary custody much more frequently than they will fathers.

The truth of the matter is that I don’t know if your judge will have a built-in preference as far as who will be named as the primary conservator of your child in a contested custody case. The fact is that the law in Texas does not give him or her any ability to place the mother or father in a more “advantaged” position solely based on their gender. The evidence and only the evidence but be how a judge makes a best interest determination for your child.

With that said, many fathers find themselves in a position where they are not able to win primary custody of their child through little fault of their own. For example, if you are reading this as a father the odds are good that you have a job that requires you to wake up early and get home around dinner time- or later. If your spouse has been fortunate enough to be a stay at home parent then their schedule has largely revolved around your child’s. There is nothing right or wrong about any of this- it is simply a reality for your family and many others in our area.

However, if you consider issues like which parent is your child more attached to, and which parent is better equipped to care for the daily needs of the child it is more common for a mother to be in an advantageous position than fathers. We just mentioned why this is- you as the father has been out in the world providing for your child while your spouse was at home with your child. If there is a built in “penalty” for being a father in a child custody case this is it.

Gender can be a consideration that is used by a judge

Based on the age of your child, he or she may identify more with you or your spouse based on your gender. For example, if your child is in preschool then he or she is at an age where you have probably noticed that they identify strongly with the parent who is their same gender. A child’s ability to be able to identify as a boy or girl is dependent in large part on being able to have a sense of self fostered by their parents. Therefore, a preference may be shown by your judge to award primary custody to whichever parent is the same gender as your child is all other things are equal.

How your religion can impact a child custody case

Any judge that you encounter will not allow religion, ethnicity or culture to impact their decision. It has happened that a parent was denied custody of their child based on one of these factors. In modern times, judges will approach these subjects from the vantage point that unless the religious belief or cultural practice puts your child in harm’s way it is not a relevant consideration to take into account during the course of a child custody case.

The reason for this is that there is no proof that being exposed to different cultures, ways of life or religious practices cause harm in a child’s life. It could be that exposure like this can actually have a positive effect, in fact. Developing a sense of who they are as a person can be enhanced by your being able to show your child what your family’s religious or ethnic traditions are. As your child ages he or she will be able to make more intelligent decisions about how to live their life as a result.

How your sexual orientation will play a role in a child custody case

People’s opinions and beliefs in regard to sexual orientation have evolved dramatically in the past ten years or so. One needs to only look to the political platforms of candidates and parties to see how our nation has changed in its overall approach on this subject. I am not here to make a judgment on that one way or the other. My purpose in bringing up this topic is to help guide you in understanding what role it could play in your child custody case.

Even with the changes we have seen in regard to this topic, the sexual orientation of you and your child’s other parent should not play a role in your case. From a research based perspective, there are no studies that show children living in a household headed by a gay parent are more likely to suffer mental/physical harm than in a household headed by a heterosexual parent. The data would be fairly limited, but I don’t believe there is any kind of research that could show that judges show preference one way or the other for parents based on this criteria.

That is all to say that a judge will not assume that your sexual orientation will play no role at all in the raising of your child. Certainly, there are differences between parents in every family law case. A difference in sexual orientation can be one of the more compelling ones, potentially. Mainly what a judge would look to is whether or not your or your ex-spouse’s relationships or sexual activities are harming your child in any way. It does not matter who you are engaging in these activities with- same sex or opposite sex. What does matter is the degree to which your child is aware of them as well as their effect on your child.

The bottom line is this: if your relationships, sexual activities or dating behavior has had a negative influence on your child in some manner that your opposing party can show a judge with evidence, then your sexual orientation can play a role in your case. However, under most circumstances and for most parties involved in a child custody case your sexual orientation would not play a role whatsoever.

Socioeconomic considerations in relation to contested child custody cases

The ability of you or your opposing party to parent your child doesn’t have much to do with how much money you make or what kind of house you live in. The judge in your case will not take points off your “score” because your income is only half of that of your child’s other parent. Likewise, just because your house has two stories and a pool in the backyard does not give you an advantage in and of itself.

What ends up happening in some divorce cases where there are major differences between the earning capacity of you and your spouse is that a judge will award the less financially well-off person spousal support in order to compensate for these differences. There are a number of factors that must also be in play for this to occur, including a ten year marriage length minimum and a spouse’s inability to provide for their basic needs on their own merits. However, do not be discouraged from filing a child custody case just because your opposing party makes more money than you do.

What factors can harm your ability to parent?

A judge will view you and your opposing party through the lens of which one of you is better equipped to provide a safe, stable and nurturing environment. In many cases, the “tale of the tape” is pretty close. There is no obvious favorite to be named as the primary conservator in most child custody cases in Texas.

Unfortunately, there are cases where circumstances come into play that can severely hinder your ability to parent your child well. Issues like mental illness, domestic violence, substance abuse and illness/disability are some of those factors. In the space we have remaining I would like to discuss the topic of mental illness and how it can impact your child custody case. We will resume with this subject in the beginning of tomorrow’s blog post.

The impact of mental illness on your child custody case

It is not uncommon for one parent to attack the other with a mental illness accusation during the middle of a highly contested child custody case. Arguments that he or she takes medication for depression, or that he or she was hospitalized fifteen years ago because of this or that come up every once in a while. The reason people tend to bring up these issues is that they can be effective in intimidating the other parent to backing off on their demands or otherwise pushing as hard for a primary conservatorship role.

If you are suffering from a mental illness it is important for you to understand that judges will not base their decisions in your case based solely on this factor. If you are seeking and receiving care for your particular illness then this may actually be viewed as a positive attribute of your case. Your ability to parent and provide for your child can be enhanced in light of your own acknowledgement of whatever mental shortcomings you have. If you are willing to continue to receive care and can help foster your child’s relationship with your opposing party then I would not expect your mental health to be a big part of your child custody case.

The questions that your judge will ask him or herself in relation to a mental illness will be examined tomorrow.

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Other Articles you may be interested on regarding Custody

1. Child Custody Basics for Texas Parents Revisited
2. When Can a Minor Child Weigh in on Custody Decisions in Texas?
3. Texas Child Custody Modifications
4. Amicus Attorneys in Child Custody Disputes in Texas?
5. Sole Managing Conservator in a Child Custody Case in Texas?
6. Teens with Children, Child Custody and Child Support in Texas
7. Child Custody and Divorce in Spring, TX
8. Custody and Visitation Rights of Grandparents in Texas
9. 11 Things You Must Know About Texas Child Custody
10. 12 Texas Custody & Conservatorship Battle Tips
11. Child Custody and Religion: Navigating Differences in Texas
12. An Introduction to Islamic Divorce and Marriage Contracts
13. The rights of Lesbian, Gay and Transgender parents in Texas family law cases

Bryan Joseph Fagan( Attorney )

Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.

Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.

His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.

Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.