In my years as a family law attorney, a myth persists despite a great deal of evidence to the contrary. The myth that I am referencing is that mothers have an advantage over fathers when achieving their goals in a child custody case. Whether that child custody case comes as a part of a divorce or as a standalone custody case, the belief that fathers cannot achieve parity with mothers in any area of the case is a myth. Being an inquisitive person, I always try to investigate the source of myths like this one. I think there are a few different reasons why this myth is still bouncing around our culture.
For one, I think that there probably was, at some point, an unwritten preference for mothers to be able to be the primary parent for children in Texas. Primary parent, in this case, means being the primary conservator in the language of the Texas family law. A conservator is a person who holds rights and duties towards another person. As a parent, you must care for and provide for your child's basic needs. You also have the right to make decisions that are intended to be in the best interests of your child. Their schooling, medical treatment, and who your child can build relationships with are among the types of rights that a parent holds in Texas.
From the moment that your child is born, you hold these rights and duties in equal proportion to your child's other parent. This is true whether or not you are married. As long as you are legally declared a parent to a child, you hold these rights and duties. The law does not distinguish between the rights and duties of mothers and fathers. The law does not hold that mothers or fathers have superior rights when compared to others. The law is gender-neutral in that regard. So, the myth of mothers being better positioned to come out on top in a conservatorship discussion is not based on the Texas Family Code.
Still, mothers do seem to be named as primary conservators of children more often than not. If you are a mom reading this blog post, that may make you happy (assuming that you want this designation). If you are a father reading this blog post, then this may upset you. As a dad of three kids, I wouldn't blame you for being upset. Why should moms achieve their goals more frequently than dads- all other things being equal? Well, I think the answer to that question is right in front of us.
To me, the answer is that things are never exactly "equal" when it comes to what you offer as a parent and what your co-parent offers. This is the uncomfortable reality for fathers as they head into a child custody or divorce case: what do you offer your children, in the eyes of a judge, that your child's mother does not? That is the question that you need to begin to ask yourself as a family law case if you want to become the primary conservator of your children.
What is so great about being a primary conservator of your kids?
I've used the term "primary conservator" a few times already in today's blog post. You may have figured out that it means something about rights and duties for your kids, but I haven't explained myself fully in this regard. Let's talk about what a primary conservator is about your children. Other than telling your kids what to do, what benefits come as a part of being named a primary conservator in a Texas family law case?
For starters, the primary conservator of a child in Texas holds two superior rights compared to the possessory conservator of a child. For one, the primary conservator of your child can determine the primary residence of your child. This means that the primary conservator picks where your child lives. If you are the primary conservator, that means your child lives with you full time. If your co-parent wins this right, then she gets to make this decision.
Choosing where your child lives are huge in a family law case. As a parent, you are primarily concerned with two things: spending time with your children and then being able to hold those rights and duties about them that we have already spent some time discussing. From my experience, I would tell you that most parents are primarily concerned with the time aspect. There is something about a family law case that causes a parent to protect against the possibility of losing time with their children. If your case hasn't yet begun, you will see what I mean once your case gets going.
If your children are in school, then you will be able to send them off to school each day and have them come home to your place if you are named as the primary conservator. Since most of the year is spent on the school calendar, this is also a built-in advantage as far as time is concerned. There are ways for the possessory conservator to achieve near parity on time, but it is difficult to get to an exact 50/50 split of time with your children.
The other major advantage from a conservatorship perspective that the primary conservator of your children holds is the ability to receive child support. Since your kiddo will spend more time with the primary conservator, the law in Texas requires that the other parent pay support to equalize the costs associated with raising the child. Whether or not this is the case depends on your circumstances. Between having the right to choose where your child lives and receiving child support payments, the primary conservator holds a superior parenting position even if everything else is completely equal between the parents.
Do fathers always have to pay child support?
Despite what you may hear in the hallways of the family court or small talk with friends, it is not mandatory for fathers to pay a mother's child support after a family law case. We have just covered that it is the possessory conservator who must pay the primary conservator child support. With that said, the real question that we need to ask ourselves is why do dads typically end up being the possessory conservator, and why do moms typically end up being the possessory conservator of children after a Texas family law case?
Unfortunately, the reason why fathers end up as possessory conservators more often than mothers is not some conspiracy theory, an exciting reason that I can provide you with. Rather, the reasoning is pretty straightforward: mothers, more often than not, put themselves in a better position to be named as primary conservators compared to fathers. This is like asking why the better football team won the game- the answer is because they were better than the other team. You can't blame the referees; you can't blame injuries. The better team usually wins the game. In family law trials regarding custody, the mother usually wins primary conservator because she has worked to put herself in that position.
What do you need to do to put yourself in a good position to become the primary conservator of your children? The first thing that I would tell you is that the dye has already been cast in this regard. Meaning: your past actions as a parent would have already determined whether or not you will be able to successfully win this status in your child custody or divorce case. If you have been an involved parent in the lives of your children, then that will speak volumes to a judge. What specifically does a judge look for when naming a primary conservator? Here are some thoughts.
What does a judge look for in a parent when naming a primary conservator?
Judges are not looking to make a statement with any of their decisions in a child custody or divorce case. Rather, the judge is bound by law to make decisions that are in the best interests of your child. The current and future needs of your child, the ability to have a connection to their extended family, the child's preference (based on age), and the willingness of each parent to make an effort to encourage a strong relationship with the other parent are among the factors a judge will likely consider. If you are interested, a full list of the Holleyfactors is available on this blog, along with numerous posts touching on each one. Go ahead and search for those blog posts- once you're done with this one, of course.
The judge will look to these factors as well as their own experiences when deciding on conservatorship rights. The decision-making process is just as much of an art as it is a science. That is another truth about family law cases that need to be brought to your attention: family court judges have a lot of leeways to make decisions based on their specific interpretation of the facts of your case. Many areas of the law rely on past cases and precedents to determine outcomes in current cases. Family law is not one of those areas of the law. How your case appears to the judge is just as important as any other factor out there.
Mothers tend to be the parent who is at home with the kids consistently. Whether that is true for your family or not, or something that you think is outdated or an anachronism is not the case for most families. Mothers tend to be more active in the daily lives of children. Think soccer practice, being there after school, waiting in the pickup lines at school, taking the kids to the doctor, helping with homework, and cooking dinner. The pandemic may have changed that routine to an extent by allowing fathers to be at home more. In history, fathers tend to work outside the home and work longer hours more than mothers.
This gives your child's mother more of an opportunity to establish that it is in your child's best interests that she be named the primary conservator. That doesn't mean that the judge thinks you are a bad dad or wouldn't be a good fit for that role. It means that the judge has you and your spouse/co-parent to choose from as far as becoming a primary conservator. If your child's mother has established their credentials as the primary caretaker of your child to that point, then you have an uphill battle to fight as far as becoming primary conservator.
If your wife has been the primary caretaker of your children, does that mean you shouldn't push for a primary conservatorship?
So if you are reading this and are a father, what does all of this mean for you? If you have worked your behind off to put food on your table and a roof over the head of your children, does that mean that you can't push for primary conservatorship in a divorce trial? Does being the best dad you can while not working 50 hours a week mean nothing to a family court judge? Should you resign yourself to playing second fiddle to your child's mother from here on out?
Not. You can still accomplish goals that you set for yourself in a divorce or child custody case, for that matter, if you are a father. I would try and get across to you as an attorney because you need to choose the best field of play to win your game. For instance, if you have a strong case to become the primary conservator of your children, then you should attempt to win that designation in mediation. Your co-parent or spouse will likely understand that you have a strong leg to stand on as being named primary conservator. If she doesn't, then if you chose a good mediator, they will do so.
In that case, you can work to establish yourself as a parent who has a 50/50 split in custody and rights/duties. This is not only possible, but I would argue it is probable in many cases. You can work to keep your kids with you as much as you can while also minimizing or even avoiding having to pay child support due to the parity in time that you and your co-parent have with raising your kids. Don't lose track of how much can be won as a father by considering your case a lost cause if you cannot win primary conservatorship outright.
On the other hand, if you are deadest on becoming the primary conservator of your child and have not been the most involved parent because of legitimate reasons like your spouse preventing you from seeing the kids or a work schedule that keeps you away from home, then a trial may be the avenue that you have to choose to become a primary conservator. The reason why is that your spouse or co-parent is very likely to be unwilling to concede much to you in mediation.
Her attorney will tell her to call your bluff and head to court if she wants this designation. Most men will fold and not push forward. Some will not. It is up to you to determine how strong your case is, the specific facts and circumstances of your case, and how far you are willing to push things to see what result can occur. Some risks go along with going to trial in a divorce or child custody case. However, if you cannot accomplish your goals in mediation, then a trial stands as an option for you to take advantage of.
Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material presented in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great opportunity for you to learn more about the world of Texas family law and the specific facts and circumstances of your case.
You can find our attorneys in the family courts of southeast Texas every day working on behalf of our clients. We take a great deal of pride in being able to serve them as members of our community. Whatever circumstances you find yourself in, we are here to help. I appreciate your interest in our law office, and we look forward to the opportunity to serve you and your family in the future.