Many factors, issues, and circumstances are at play in a family law case that receives attention once a case is filed. Parents are oftentimes concerned with their ability to maintain a relationship with their children, and two present a united front with their Co-parent after a family law case clumps to a close. Many times these issues take on added importance when an issue becomes particularly heated within a case. We see this happen in situations involving parents arguing over which of them will become the primary conservator of the children.
A lot of the time, this subject comes down to who is in a better position to parent your children on a full-time basis. While we don’t always like to admit things like this, mothers and fathers tend to take on different roles in parenting and income Earning for the family. Historically, men have typically been the income earners for a family while women take on more roles as caretakers for the home and the children.
While it would be unfair to say that these designations are still true across the board, there is still a great amount of truth that parents share responsibilities in fairly well-defined ways. By this I mean, that one parent is more likely to be a provider of income in the other parent is primarily devoted to caring for the children. Specific circumstances may differ to an extent, but overall in many households that I work with, one parent will focus more on raising the children than the other.
This doesn’t mean that certain families may not take on a hybrid role in each capacity. It does mean that you need to examine what your role in the parenting of your child has been and what that means for your family law case. Many parents, especially fathers, 10 believe that the family law process favors women over men. This is a strong position to hold, and I would want to make sure that this is not the case or I got involved in an expensive and time-consuming family law matter of any kind.
The title of today’s blog post references The point that mothers and fathers try to find out about with some regularity before beginning a family law case. Who has the advantage when it comes to custody issues: mothers your fathers? While you may find that the answer is not always clear-cut, there are some indications that you can look for in your own life to determine a newer ability to come out on top when the question of primary conservatorships is raised.
Specifically, as a father myself, the question I would want to be answered is whether or not I have a puncher’s chance at getting a fair hearing in front of a judge on this issue. After all, if there is an explicit or implicit bias regarding family law cases in Texas, why would you even want to bother moving forward with the case only to see it decided based on your gender? For the rest of today’s blog post, this is the subject that I would like to discuss in detail.
What’s the big deal about being a primary conservator?
The child’s primary conservator regarding a divorce or child custody case is the parent who cares for the child consistently and who holds advantages over the other parent regarding many issues when it comes to rights, duties, and time with the children. Let’s walk through some of the more important issues regarding these subjects so that they understand them a little bit better before your case begins.
The primary conservator of children can spend more time with the kids because they can designate the children’s primary residence. Being able to designate the children’s primary residence does not mean that you have sole custody or that the other parent will not get to spend time with the kids ever. What it does mean, however, is that the children will live with you during the school year while vacations and Holidays are split fairly evenly between yourself and your Co-parent.
While this is a far cry from having something like sole custody, it allows you to spend probably close to 60% of your child’s time together with you. The possessory conservator, the person who is not the primary conservator, will have Visitation rights and privileges during the summer to have extended periods of Visitation. However, there is a feeling that the nonprimary conservator is always operating from a disadvantage when it comes to time with the child an influence in that child’s life as far as their well-being is concerned. Whether or not this is the case in your family will ultimately decide based on the factors and circumstances at play in your case.
Additionally, the primary conservator will have the right to be paid child support by the nonprimary conservator. Child support is calculated based on how many children a parent has in a specific family law case and their net monthly income. To be sure, this is a huge responsibility as far as having to pay child support is concerned. While the calculation of child support is based on a formula contained in the Texas family code, the reality is for some people, this can be a fairly emotional topic.
There is something about paying money to an ex-spouse or former partner that rubs many people the wrong way. Just when you think you need to be attached to this person has come to an end, the reality is that your life with him or she may just be beginning as Co-parenting and child support responsibilities come to the forefront in importance. With that said, there is ample opportunity 2 discuss the issues relevant to conservatorships and the deciding of these issues within a case.
That discussion typically comes about during the negotiation phases of a family law case. You and your Co-parent will have an opportunity and an obligation to go over these topics in detail to see if you all can arrive at a settlement between yourselves rather than proceed forward to a contested hearing or child within your divorce or child custody case. Ultimately, this is where many people find themselves better able to come to a solution that works best for all parties.
Do mothers have advantages in child custody and divorce cases when it comes to custody?
I think this is the question that we ultimately need to ask ourselves before going any further. If you are a concerned father who wants what is best for their children, then we need to seriously consider whether or not the state of Texas will provide you with a fair chance to have your issues addressed in child support, child custody, or divorce case. You may have even spoken with well-meaning friends and family who have told you that you have no chance to win primary custody or even a split in Visitation because of different prejudices held against men. Is this true?
The reality is that The Texas family code does not favor women over men regarding custody questions. There are specific provisions in the Texas family code that hold that no preference is to be given by family court judges regarding the agenda or sex of the family law party. This means that family law judges are forbidden from considering whether you are a mother or father to request relief from the courts.
This should give your fathers out there some reason in the cause for optimism. However, they also leave you scratching your head because it would appear that mothers are more frequently named as primary conservators of children than fathers are. If this anecdotal truth is the actual truth, then we need to figure out why mothers are often named as primary conservators instead of fathers. Is it that mothers are just better parents?
I hope you can see that there is no basis for the belief that mothers are just better parents and are more qualified to become primary conservatories of children. While many factors are in play during a family law case, probably the most important factor when naming a primary conservator is to see which parent has fulfilled that role more frequently during the family’s life before their family law case beginning. A judge is less willing 2 take a risk naming apparent who is not experienced in raising the children, primarily as the primary conservator. Once we can understand this, everything else falls into place.
How important are the roles that you and your spouse filed during your marriage?
Once we have determined that the law does not explicitly favor men or women in custody circumstances, we need to consider whether or not your circumstances play a role in determining which parent will be named the primary conservator. The obvious and direct answer to this question would be: absolutely yes! Family law cases are almost entirely predicated upon your factual circumstances and what a judge can perceive based on your history as a parent. And as a result, you should be looking back at your history as a parent to determine what chance you have of being named primary conservator.
For instance, when you begin to consider what role you And your spouse field during your marriage, you can then project what a judge would do if you presented them with the question of naming one of you as the primary Conservator of your children. As discussed earlier in today’s blog post, mothers more typically than fathers, at least in my experience, fulfill the role of primary caretaker of the children in a typical family. That doesn’t mean that you as a father may not be the primary caretaker for your children or that you are not capable of doing so. All it means is that your role in the household likely has not been the primary caretaker of the kids.
Why does that matter? Are you being punished for working more than your spouse or for allowing her to care for and nurture the children? Not at all. The job of a family court judge is not to designate specific roles for parents or limit your ability to care for your children as a father. What the judge’s job is, if called upon, would be to make decisions that are in the best interest of your children. Judges are typically conservative and how they award rights and duties in a family law case because they are not ones to rock the boat or bring into a family a great deal of change at one time.
As a result, it is more likely than not that a family court judge would award rights in duties in a divorce based on the roles that you and your spouse filed during your marriage. If your wife was the party who spent more time at home with the children intended for their day-to-day needs, then it is likely that the judge would allow this to continue absent evidence to the contrary why this should not be the case. By the same token, if you were the primary caretaker of the kids before the divorce, I think it is more likely that you would be named as a primary conservator in the divorce.
This should tell you that you and your attorney need to have a goal-setting session at the beginning of your divorce to determine what you want to accomplish in your case. They should not be pie in the Sky objectives or goals but should be based on a rational determination of what you all can achieve with your current circumstances. Fathers like yourself should not rule out the ability to become primary conservators. Still, you also need to consider your options based on your current life and the roles you have filled in your marriage and family to that point.
Negotiation as a means to accomplish your goals in a divorce or child custody case
we have been talking about this subject in the context of what a family court judge would do if presented with a question of which parent to name as primary Conservatory of your children, either you or your spouse. In reality, most family law cases do not Come down to a determination by a judge. Rather, most family law cases come down to negotiation between you and your spouse in mediation. This allows you all to discuss the issues at hand and make determinations that are the best for your children and yourselves.
Try as they might come up, family court judges are not equipped to make more informed decisions than you and your spouse. This is true even if you and your spouse are not getting along at the moment or are having a hard time seeing eye to eye on any subject. Even in the fog of disagreement with your spouse, he will still know your circumstances better than a judge ever would. Additionally, I do not doubt that you want what is best for your children and can set aside your differences with your spouse to make decisions in the kids’ best interest.
If you can objectively view your circumstances, you should have a good idea of whether or not you stand a chance in a trial to be named as the primary Conservatory of your children. If you do not think that a judge would name your primary conservator the children, and that is your ultimate goal, you need to consider this when negotiating with your spouse. You and your attorney should work on goals that will allow you to achieve some degree of success towards achieving this goal while not pushing your case to a point where you don’t think you can be successful. There are no awards handed out for pushing a case to a point where your chance of success is near 0.
Rather, you can work with your attorney and an experienced mediator to help you craft final orders that allow you to maintain a great relationship with your children while being an integral part of the decision-making for your children now and in the future. This process begins and ends with you and your attorney having a good working relationship where you can discuss the most important issues and work on intentionally accomplishing your goals.
Questions about the material in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog postcontact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the law in Texas and how your family’s circumstances would be impacted by a child custody or divorce case.