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Trends in Texas custody law

Many people going through divorces, especially fathers, tend to hold beliefs that are not quite accurate in regard to child custody laws in Texas- in the past and in the present day. Today’s blog post from the Law Office of Bryan Fagan, PLLC will touch on this topic in order 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 actually favored fathers above mothers for child custody purposes. In the event of a divorce it was fathers who were given preference to have primary custody rights of his children. In an antiquated view, children were viewed more along the lines of being property rather 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 and support for their children on an economic level. Giving him primary custody allowed him to fulfill this obligation.

However, as time progressed the preference courts gave as to whom should be given primary custody of the children after a divorce changed to that of 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 primary conservator of a child.

It may be of interest to you as a father to note that the parenting skills of fathers during this time period were not especially relevant. Fathers were thought of more as economic contributors rather than doting fathers who were expected to be able 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. It was during this time period that laws were re-written in order 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 an entirely different subject.

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 in regard to child custody. We have already touched on the history of family law and child custody and how at various times fathers and then mothers were given preferences over the other. Now, the law is written so that judges are not to take into account the sex of the parent when determining custody issues.

That is all well and good, but as with any issues in regard to the law what the black letter law states in the code books can differ greatly with the perceptions and biases of those that are expected to make rulings based on that black letter law. I think 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 certain family court judge.

After all- judges are just like you and I in that way. We all have biases, opinions and beliefs that are integral to how we arrive at and make decisions. It is impossible for any human being who is halfway intelligent and thoughtful to be completely unbiased, in my opinion. Most judges that I have ever encountered will strive to do their best to ensure that he or she is objective an impartial as possible but to expect perfection is unrealistic.

For instance, some judges hold the traditional belief that mothers are better equipped to care for their children compared to fathers. Fathers, as television sitcoms will attest to, are ill-equipped to parent children on a daily basis. If you are a father like me, this antiquated view may drive you nuts. 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 of a case you present to the judge he or she may rule in favor of your wife simply due to her sex.

On the other hand, consider that I have encountered judges that believe that when a child is a boy it is the father who is better equipped to handle the day to day care of him, rather than the mother. I have seen this be especially true when it comes to older boys. Keep in mind, and take solace in the fact, 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 her is: It depends. That answer also holds true to the question of what is the most important factor that will decide your particular child custody case. Obviously 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 have 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 the daily needs of your child. 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.

At what point does your child get to step in and voice their opinion on where he or she wants 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 he or she wants to live primarily. The opinion of your child is important in this regard, but in limited circumstances.

A child over the age of twelve must be given the opportunity to speak to the judge in their office regarding their opinion on where he or she should be living primarily. This means if your lawyer files a motion to request that the judge speak to the child then 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 at that point to allow for the conversation to occur. Consider your child’s age, maturity level, and the actual reasons why he or she has for wanting to live with you primarily before you pursue this path. The opinion of your child 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 with you the services that we can provide you and your family as a client of ours.


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