Fathers oftentimes face special challenges within the context of a divorce or child custody case. Although the Texas Family Code does not distinguish between the rights and duties of mothers or fathers about their children, the relationships fathers have with their families are often different than that of mothers. While mothers often act as the primary caretaker of children, especially young children, fathers often accept roles as primary breadwinners and secondary parents. This not only impacts their relationship with their children before a family law case but can potentially harm their position within the world of a child custody or divorce case.
A question that I am left answering quite a bit in conjunction with family law cases is why fathers seemingly always end up as possessory conservators rather than primary conservators. The primary conservator is the parent who cares for the child most frequently, establishes the kids’ primary residence, and has primary decision-making responsibilities. The possessory conservator has the right to spend time with children and make decisions for them but to a lesser extent. If you are a father in Texas who is about to go through a divorce or child custody case yourself, then you need to understand these issues to set yourself up for success.
Why do fathers fare worse than mothers in family law cases? Do fathers fare worse than mothers? What does “worse” mean? These are the questions that I am going to answer in today’s blog post. This is a critical topic, given that I have seen so many fathers come into family law cases operating at an information deficit compared to their female counterparts. I’m not operating under the impression that a single blog post could eliminate the information deficit, but I will do my best to help the process.
Do fathers fare worse than mothers in family law cases?
We need to figure out whether fathers actually do fare worse than mothers in family law cases or if this is more of an urban legend that has been circulating in society but never truly disproven. I know that I have heard from many fathers who have told me that their understanding and belief is that fathers truly have a difficult time being named as the primary conservator of children. When I ask people about this, they can never really give me a specific reason, but they are more or less sure that this is the case. Therefore, we need to figure out whether fathers have a disadvantage and family cases in Texas.
The first place we could look for some bases for this belief would be in the family code. The Texas family code guides judges and attorneys when making determinations regarding family law cases. I imagine that many people involved in a family law case believe that The Texas family code contains specific provisions that give fathers a disadvantage compared to mothers. As often as I have had fathers assume that they have no chance to become the primary conservator of their children, I have also spoken with mothers who assume that they will automatically be able to obtain decisions in their favor simply because they are the mother of a child.
It would probably surprise those people to find out that there are no differences between how mothers and fathers are treated under the law if you open up the Texas family code. There is no explicit benefit to being either my mother or a father in conjunction with issues related to the parenting of a child. There are no advantages to being a mother or father when it comes to possession, Visitation, child support, or any other subject related to your children. The language in the code is gender-neutral, then parents go into a case on even footing as far as the law is concerned.
Another area where I imagine there is an assumption that the law favors mothers is family court judges. Maybe old prejudices die hard, and the judges read in their own implicit biases into how family law cases are decided by favoring them towards mothers when compared to fathers. I have practiced family law for a good chunk of time. Anne can tell you that certain judges do have reputations for behaving in one way or another. Sometimes it even makes sense to tell a client about how judges attitudes or biases in advance to prepare them.
However, I can tell you that the vast majority of the time, there are no advantages set forth by a judge 1 compared to 2 judges who rule against parents based on any number of other factors. Rarely in my time practicing family law have I come across a situation where I could honestly say that a judge ruled for or against a client due to being either a male or female. The idea that a court would rule favor a mother simply because she is a woman does not come up.
If not found in the law, or the decisions of judges, or biases towards mothers by judges, then we are running out of places where there can be inherent biases in the legal system against fathers. It has little to do with someone having a Y chromosome, but it does have a great deal to do with how we as human beings still lead our lives even in the year 2021. That is what I would like to discuss with you all in the following section of today’s blog post. How do our decisions as humans and how we parent our kid’s impact how family law cases are decided?
Fathers can be at a disadvantage based on how typical household functions.
The reason why mothers are often awarded the right to determine the primary residence of the children and the right to receive child support is due to their being named as a primary conservator of children. Being designated as the primary conservator of a child is a function of being involved in a family law case. Before beginning any family law case, you as a mother or father have the same rights and duties compared to your child’s Co-parent. It doesn’t matter if you are married or not; as long as you both are legally designated as parents, you share equal rights in the decision-making and time-sharing components of parenting.
It is only when you and your Co-parent go to family court to have various issues decided that the law comes into play and begins to determine which of you holds which specific conservatorships rights. Also, only then will a determination be made in terms of a possession schedule that allows you and your Co-parent to have a predictable amount of time to spend with your child throughout the year.
So much of the time spent in a family law case, whether it is child support or child custody case, on determining a Visitation schedule and conservatorships rights in how they will be divided between parents. If you are like most families, your concern lies primarily with being able to spend as much time with your children as possible despite the hardships of a family law case and living in separate households from your child’s other parent. It is reasonable to have this concern, but I would offer you that an even more important part of the case can maintain a strong position as a decision-maker for your child.
Making decisions for your child and being responsible for providing certain things for your child means discussing conservatorship’s rights. When we talk about child custody cases, what we are referencing is conservatorship cases. Surprisingly, the word custody does not appear in the Texas family code even one time. The ability to make decisions on behalf of a person and to hold and bear responsibility for the well-being of another person is called being a conservator. An adult can be a conservator for one of their children or even 4 adults who have mental or physical impairments that render them unable to care for themselves.
In the typical child custody or divorce case, there are two different types of conservatories. There is a primary conservator in a possessory Conservatory. The primary conservator in the possessory conservator both have the right to spend time with their children; their responsibility is to look out for the child’s best interests and the right to access information regarding the child’s education, health, and general well-being. The big difference between the two types of conservators is that one will determine the child’s primary residence. The other will have a Visitation schedule awarded to them in the family law case.
The primary conservator is in the driver’s seat in several ways. First of all, the primary conservator has the right to determine the child’s primary residence about where they live regularly. If you are named as the primary conservator of your child in a Texas family law case, then your child will be living with you on a full-time basis. That doesn’t mean that your child will not be spending time with the other parent or that they will not have a say so in the life of your child it’s just that most of the year your child will be spent in your home and your care.
The next advantage that a primary conservator holds over the possessory Conservatory is that the primary conservator can receive child support in most cases. Because the primary conservator has the child more often than not, it is reasonable to expect that they will bear the brunt of the daily costs associated with raising that child. To equalize the costs as much as possible, the possessory conservator will pay a certain percentage of their net monthly income to the primary conservator. Typically the percentage of net monthly income that you could expect to pay in child support ranges anywhere from 20 to 50% at the absolute high end.
Finally, the primary conservator typically has the right to make decisions on behalf of a child to a greater extent than the possessory Conservatory. For instance, the primary conservator may also have the final or independent ability to decide on the child’s health or education. They may choose to take into consideration the thoughts of the possessory conservator. Still, the final decision-making authority in these areas may end up lying with the primary conservator. However, each case in each situation is unique unto itself. You should not assume that if you are named the possessory Conservatory, you have no authority when it comes to decision-making for your child.
These are among the most important ways that a primary conservator has advantages over the possessory Conservatory when spending time with your child after a family law case and making decisions on their behalf. Depending on your specific circumstances, you should speak with your family law attorney about any special considerations that need to be made for you and your family.
So why is it that, at least anecdotally, mothers are more often named as the primary conservator compared to their counterparts? If you, as a father, stand ready to take over these responsibilities in a family law case, do you have any shot at all?
When determining your ability to be named as a primary conservator as a father, look to your family circumstances.
The reality of the situation is that you, as a father, need to look at your family’s history as a means of determining your chances of being named as the primary conservator of your children. To be sure, many fathers are not a part of their child’s life on a day-to-day basis. There can be many reasons for it, but at the end of the day, a family court judge would look to the involvement of both parents in determining who will be named as the primary Conservator.
If you are an active and involved father who takes part in the day-to-day care of your child, then you may be asking what shot you have at becoming a primary conservator after your child custody or divorce case comes to an end. All other things being equal, I would tell you that you stand just as strong of a shot as the mother does at being named primary conservator. However, it would help if you looked at a few other factors when determining whether or not this is a responsibility that you can handle both now and into the future.
For instance, do you work in a field where you are prone to receiving phone calls or emails that require you to attend to work at a moment’s notice? If so, your life and work balance may not be such that your children’s primary conservator works well for your family. This doesn’t mean that you are not interested and involved, dad; it just means that your family may require you to work more than it does care for your children at a moment’s notice. Fathers who travel quite a bit for work maybe spend all of their free time with their children. Still, if your day-to-day responsibilities take you away from home quite a bit, then you need to seriously ask yourself whether or not your child’s best interests are reflected in your being primary conservator.
These are just a few considerations that you as a father need to make before becoming involved in a family law case. I cannot tell you how many fathers assume that they will not be named as primary conservators of their children because of an old wives tale regarding courts favoring women over men in this context. There is no guarantee that you as a father will be named as primary conservator if that is your wish, but you certainly should not assume that you have no chance simply because you are a man and not a woman. The attorneys and staff with the law office of Brian Fagan help men in your position every single day, and we would be honored to be able to serve you and your family, as well.
Questions about the material contained 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 post, please do not hesitate to contact 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 world of Texas family law that may impact you and your family in a potential family law case.
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