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Child custody for children under three in Texas

If you’re a father with a baby at home and are going through a divorce it’s likely that you have questions regarding how much time you’re going to be able to have with your child after the divorce is finalized.

After all, infants are on a pretty strict feeding schedule and cannot be away from their mothers for long if they are breast feeding. Toddlers may eat solid food but their lives are still regimented into a comfortable routine. Where does your time as a Dad fit into that schedule of nursing and napping?

By the same token, some of you reading this blog post may be mothers who have an infant at home. If you are having to deal with a divorce on top of the other issues associated with the baby it’s likely that your stress level is at an all-time high.

Are you able to take comfort in knowing that since you’re nursing the child you are likely to be awarded primary custody in a divorce from your spouse?

The divorce attorneys with the Law Office of Bryan Fagan, PLLC would like to outline some factors that we believe are important in young child (under three years of age) custody in Texas divorce cases. While there are few things that we can tell you with one hundred percent certainty there are items that are worth informing you all of.

Are mothers granted custody automatically for children under the age of three?

In a word- no. Just because a child is young or nursing does not mean that it is a given that the mother will be granted primary conservatorship without further discussion or challenge from a father.

If you are a mom who is entering into the divorce process with a very young child in your care it is critical to know that the judge will review a list of factors when determining what living situation is best for the child. Whether or not the infant or toddler is breast feeding is just one factor to consider.

Does the Texas Family Code have a provision concerning breast feeding moms?

Not specifically, no. It’s the case where there is not much as far as detail that is available on this precise subject.

For people (and you can county myself as a father of two as one of them) who spend each day needing to know the precise amount of medicine to give a child with a fever or just how many cookies are too many, not knowing exactly how a court will rule on a subject like this is nerve wracking.

A judge will review the situation presented to him or her and will determine what is in the child’s best interests. A conservatorship arrangement with visitation for the non-primary parent will be scheduled and ordered. While this is not an exhaustive list of what a judge would primarily consider you can safely bet that the following will be considered when a decision on custody has to be made:

  1. the relationship between each parent and the child
  2. if there is any history of domestic violence or drug abuse by either parent
  3. the potential home environments that each parent offers the child
  4. the co-parenting skills of both parents and whether the each parent will make an effort to further the child’s relationship with the other parent
  5. income, health and age of each parent

Does the Texas Family Code mention anything about children under the age of 3?

The Texas Family Code contains the statutes that govern a divorce case as well as child custody determinations. Texas Family Code section 153.254 does state that a court will need to create an appropriate order when dealing with a child under the age of three.

There is little guidance, however, on what “appropriate” means leaving a great deal of discretion to the judge.

What is often in the best interests of a very young child is not what is in their best interests after age three. The stability of remaining in the same home environment on a more consistent basis may lead a judge to award less in the way of visitation with the non-primary parent than might ordinarily be awarded with an older child.

What occurs with some frequency is a judge implementing a “stair-step” visitation order that allows the non-primary parent more time with the child the older the child gets.

What is best for the child may not be easy for either parent to handle

The age old theory that mothers have an advantage in a custody case, especially one involving a child under the age of three, is not necessarily true anymore. I have seen cases where a judge has ordered expanded visitation for a father which meant mom had to make alternative plans when it came to breast feeding.

The point is this: if you are a mom and believe that it will be a slam dunk that you are awarded primary conservatorship of your little one just because you’re the mother, you may have another thing coming.

Certainly, breast feeding is important and nurturing the mother-child bond is crucial. Breast fed babies are said to be on the whole healthier while it also benefits the mother physically and emotionally. An attorney arguing the case for a mother would probably make a point to emphasize this factor.

If you’re a father, it would make sense to point out that studies show that continuous and prolonged contact between a child and a father early in the child’s development is also extremely beneficial. Either way, a custody battle in regard to a young child can be extremely contentious so choosing the right divorce lawyer for you and your family could not be more important.

Contact the Law Office of Bryan Fagan, PLLC for a free consultation

If you have questions about a child custody matter or any family law issue, please contact the Law Office of Bryan Fagan, PLLC. A consultation with our office is free of charge to speak with a licensed family law attorney.

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If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

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Law Office of Bryan Fagan, PLLC | Kingwood Divorce Lawyer

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with ar Kingwood, TX Divorce Lawyer right away to protect your rights.

A divorce lawyer in Kingwood TX is skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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