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Trends in Texas custody law

Many people going through divorces, especially fathers, tend to hold beliefs that are not entirely accurate regarding child custody laws in Texas- in the past and the present day. Today's blog post from the Law Office of Bryan Fagan, PLLC, will touch on this topic to present you with a more accurate representation of where child custody law stood in Texas and where it is now.

As with most things in life, child custody laws have changed with the times. Initially, the law in Texas and around the country favored fathers above mothers for child custody purposes. In the event of a divorce, fathers were given preference to have primary custody rights of their children. In an old-fashioned view, children have been viewed more as property than human beings. As husbands tended to be awarded property like the home, farmland, etc., there was no reason why the same wouldn't be true of the children. We can also approach this issue from the standpoint of fathers having the duty to care for and support their children economically. Giving him primary custody allowed him to fulfill this obligation.

However, as time progressed, the preference courts gave to whom should be given primary custody of the children after a divorce changed to mothers'. This was especially true for younger children under the age of three. So long as the mother was not determined to be unfit to care for a child, she would be given primary custody. The burden was on the father to show that there was something fundamentally wrong with the mother in terms of her ability to parent the child. Alcoholism, drug abuse, or mental illness are examples of factors that could lead a father to be named the primary conservator of a child.

It may be of interest to you as a father to note that fathers' parenting skills during this period were not especially relevant. Fathers were thought of more as economic contributors than doting fathers who were expected to care for their children on a familial or emotional level. The family law courts in Texas maintained this position until the middle of the 20th Century. During this period, laws were re-written to at least even the playing field for fathers and mothers in the family code. As we will discuss now, whether or not fathers were given equal status compared to mothers in courtrooms is entirely different.

What preferential treatment (if any) are mothers given over fathers in current divorce cases when it comes to custody?

The official stance of the state of Texas is that judges are unbiased and operate without prejudice when it comes to administering justice in their courtrooms regarding child custody. We have already touched on the history of family law and child custody and how fathers and then mothers were given preferences over the other at various times. Now, the law is written so that judges do not take into account the sex of the parent when determining custody issues.

That is all well and good, but as with any issues regarding the law, what the black letter law states in the codebooks can differ significantly from the perceptions and biases of those expected to make rulings based on that black letter law. If you were to walk into the courthouse in your county and poll ten family law attorneys, each of them would have one opinion or another on the biases of a particular family court judge.

After all, judges are just like you and me in that way. We all have biases, opinions, and beliefs that are integral to arriving at and making decisions. It is impossible for any human being who is halfway intelligent and thoughtful to be completely unbiased, in my opinion. Most judges I have ever encountered will strive to do their best to ensure that they are as objective and impartial as possible, but expecting perfection is unrealistic.

For instance, some judges hold the traditional belief that mothers are better equipped to care for their children compared to fathers. As television sitcoms attest to, fathers are ill-equipped to parent children daily. This antiquated view may drive you nuts if you are a father like me. Like it or not, it is a belief that I'm sure many judges hold deep down inside of their subconscious. This can mean that no matter how strong a case you present to the judge, they may rule in favor of your wife simply due to her sex.

On the other hand, consider that I have encountered judges who believe that when a child is a boy, the father is better equipped to handle the day-to-day care rather than the mother. I have seen this be especially true when it comes to older boys. Keep in mind, and take solace that judges today are less biased and less prone to emotional decision-making than in years past.

Factors that a judge will consider when deciding custody cases

The lawyer's favorite answer to any question asked of him, or she is: It depends. That answer also holds to the question of the most crucial factor that will decide your particular child custody case. Your or your spouse's substance abuse problems, drug addiction, or history of family violence will cause a dramatic change in the playing field as far as which one of you has an advantage in the eyes of the judge when it comes to winning primary custody of your child.

Absent extreme circumstances like these, a judge will look to which parent has had the most time spent caring for your child's daily needs. If your spouse is a stay-at-home parent who has shouldered the heaviest burden of caring for your child, then it is likely that she would be given a leg up in this regard. It does not matter that you were the parent who was out in the world earning a living for your family and doing everything right in that aspect.

The rationale for this is that judges will not want to upset whatever status quo has been in place for you and your family to that point. If your child is more used to you or more used to your spouse, then that will weigh heavily on a judge's decision-making in all likelihood. This is especially true when a child is younger than school age and goes double for when your child is under the age of three.

When does your child get to step in and voice their opinion on where they want to live?

I have had countless parents come into our office to tell me that their child has already written a letter to the judge telling him or her that they want to live with their mom/dad. Or that their child is ready and willing to tell the judge where they want to live primarily. Your child's opinion is essential in this regard, but limited circumstances.

A child over the age of twelve must be allowed to speak to the judge in their office regarding their opinion on where they should be living primarily. If your lawyer files a motion to request the judge speak to the child, the judge must grant that request. The same request can be made for a child younger than twelve, but it is up to the judge's discretion to allow the conversation to occur. Consider your child's age, maturity level, and the actual reasons why they have for wanting to live with you primarily before you pursue this path. Your child's opinion will likely not be the only thing the judge considers but will weigh those factors- age, maturity, etc. – when deciding how much weight to give to your child's preference.

Custody issues explained in further detail- tomorrow's blog post topic.

If you have any questions about the material that we discussed today, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one of our licensed family law attorneys six days a week. We would be honored to meet with you to answer your questions and discuss the services we can provide you and your family as a client of ours.

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