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What are your chances of winning primary custody of your child as a father in Texas?

If you are a father who is going through a divorce or child custody case you have undoubtedly heard from friends, family or co-workers about how difficult it is for a man to get a fair shake in a family law court. Mothers always win primary custody, they will tell you. You ought to just agree to her terms and get the case over with, others will opine. The system is rigged, it’s unfair and there hasn’t been any progress in this area since family law courts started to hear divorce and child custody cases. The question you need to ask yourself is: what information available to me can I believe and what should you disregard?

The best interests of your child will determine the conservatorship rights you have over your child

Before we go any further, allow me to say that the majority of child custody or divorce cases in Texas do not ever see the inside of a courtroom for a contested hearing or trial. Many courts around our state are requiring parties to attend mediation prior to a temporary orders hearing or trial. This means that you and your opposing party will meet with an independent, third party attorney to see if that attorney can help you two mediate and settle your case. This is a great way to come up with an agreement that incorporates more of what each of you want in a parenting plan, versus a judge’s orders that will not be nearly as flexible.

Ultimately a judge will be concerned about what is in your child’s best interests when issuing orders regarding conservatorship. What matters isn’t whether you are a man or a woman, or whether you work full time or are a stay at home parent. The decision from a judge boils down to which parent does your judge believe will provide the love, stability, consistency and care that your child deserves. This can often times be a difficult decision to make when both parents are qualified to become the primary conservator.

Each parent, yourself included, must offer evidence to the judge that will be both credible and sufficient to meet the burden of proving that you are the parent more suited to become the primary conservator of your child. Let’s examine some questions that you can ask yourself at the outset of your divorce or child custody case, the answers to which can give you a pretty good idea of whether or not you have a strong chance at becoming the primary conservator of your child.

  1. Which parent has taken a strong interest in your child’s schooling? It is important that your child attend class regularly and miss days on when he or she is ill. You need to be able to show that you have helped with homework, taken the child to school, attended school events and generally been present for these sort of activities.

Sometimes fathers are working and do not have the opportunity to attend school functions and help with homework as much as moms do. This isn’t a personal knock against you, but it can effect whether a judge believes you are a better choice to become your child’s primary conservator.

Your judge isn’t concerned with how it will look to others if he or she doesn’t award you primary conservatorship, or what efforts you have made in the past to be active in your child’s academic life. If your spouse is the better alternative to ensure that your child attends class and participates in school activities the advantage is on their side, regardless of your legitimate reasons for not being as active in that area.

  1. Where will each of you be living after the divorce? The parent who is able to remain in the family home during the divorce and is awarded the home after a divorce has an advantage when it comes to being named the primary conservator of your child. Judges want to ensure that consistency and stability are present in your child’s life and allowing him or her to remain in your family home is a strong way to ensure that these characteristics are in place.

Many fathers assume that when a divorce is filed it is you who has to leave the residence and find another place to live. This is not true. That home is just as much yours as it is anyone else’s. If you intend to fight for primary conservatorship of your child remaining in that home as long as possible is an important part of that fight. If you concede living in the house to your wife then you have lost a major battle in the war for primary conservatorship.,

Finally, if you do have to leave the home after a temporary orders hearing or other event in your case, make sure that you find yourself a living arrangement that is conducive to having your child live with you. Living in an apartment is no knock against you, but moving in with a roommate can be. A judge will see no reason to name you as a primary conservator when the decision is between your child living with you and a roommate in a new home, or remaining in the only home they’ve ever known. Bottom line: don’t help the judge make a decision against you when it comes to choosing a place to live.

  1. Do you have a history of domestic violence or abuse towards your child? If there is a history of violence in the home- where police have had to be called out or CPS has become involved to the point where an investigation was started, it is going to look bad for you in a fight for primary conservatorship.

What’s more- if you intend to allege that your wife is abusive you ought to have tangible evidence of the abuse and not just allegations. It should come as no surprise to you that parents lie in family law cases to get their way. Such is their desperation to “win” their case. If you cannot substantiate your allegations of abuse or violence with police reports, witness testimony or photos then your claim (and you) loses credibility in the judge’s eyes.

Closing thoughts on fathers attempting to win primary conservatorship of a child in Texas

If your child is very young (under the age of three) you as a father will have an uphill battle to being named as the primary conservator of the child. For infants who are breast fed your odds drop nearly to zero, obviously. The rules associated with children this age are different than for older children. If you have questions about this please contact our office and we will be happy to walk you through this scenario in greater detail.

Many parents come into a child custody or divorce case and care a great deal about “labels”- as in, which parent is primary, which parent merely has visitation rights and things of that nature. Most people who don’t know a whole lot about family law in Texas will come in and state that they want “full custody” of their child. As you’ve seen, there is no such thing as “full custody” in the eyes of a Texas judge. If we assume that both you and your spouse are qualified and loving parents, the decision can be a difficult one for judges to make in terms of which of you are named primary conservator.

If your goal is to be with your child as much as possible then your best bet is to work out a settlement with your spouse. While you may not be able to win primary conservatorship, you can arrange a visitation schedule that suits you and your child well. What’s more if your split in possession with your spouse is nearly 50/50 you may be able to eliminate the need for child support to be paid, or at least greatly reduced the percentage of your income that goes towards support.

Finally, the rights and duties that you as a parent share with your ex-spouse for your child are nearly identical in most situations after a divorce. If you are not named as the primary conservator of your child you can still make decisions about medical and educational aspects of their lives. These are less often considered but just as important in many regards as physical possession of your child. Consider all aspects of parenting before you stake a position on whether to fight until the end for a label that outside of the courtroom doesn’t hold a lot of meaning,

Questions about primary conservatorship as a single father? Contact the Law Office of Bryan Fagan, PLLC

For a free of charge consultation regarding divorce or child custody cases please contact the Law Office of Bryan Fagan, PLLC. We represent clients from all walks of life across southeast Texas and we would be honored to do the same for you. A free of charge consultation with one of our licensed family law attorneys is only a phone call away.


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