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Are you encountering a complex child custody issue? Learn what your judge will think

The majority of family law cases, whether child custody or divorce, do not require any sort of contested hearing. Most of the time you and your opposing party would be able to settle whatever issues are relevant to your case- either in mediation or in an informal settlement negotiation. There is, however, a chance that a settlement is not reached and you would require a hearing or trial. Asking yourself what can help you improve your chances of being viewed favorably in front of a judge is important to your success.

That is the tough part of going to see the judge. Judges are guided by the Texas Family Code, the decisions from Texas appellate courts as well as from their own experiences on the bench. Judges also have reputations and habits as far as what they do and do not like to see as well as how they typically rule in any given situation.

Lawyers will commonly talk amongst themselves about how Judge X really doesn't like it when parents abuse marijuana, or how Judge Y has a fit whenever a parent is disrespectful in court to the other parent. With no offense intended towards my colleagues, I always think that these are fairly obvious things that most judges would not approve of and would prefer not to see in their courtrooms. Breaking news: judge doesn't like drug use around children nor do they like disrespectful parties in their courtroom.

What you and I are here to talk about today will hopefully be more relevant and certainly more helpful than the pieces of advice that I gave you a moment ago. Rather than zero in on factors that are likely not relevant to your case, I would like to share with you some advice on how a family court judge is likely to view your case from a child custody perspective. Most cases are not one-sided affairs as when a powerhouse football team travels to play a school that is in their first year of having a team. 70-0 scores in the context of Texas family law are not common. More common are reasonable people who just cannot seem to settle their case and are therefore forced to bring it in front of a judge.

Judging is not easy

Judges are placed in a tough position when you ask them to decide your child custody case. This may seem counterintuitive in a way. We all, like it or not, judge other people as well as ourselves. Why would that person do that, we may wonder from time to time. Co-workers, friends, family and complete strangers often cause us to scratch our heads and wonder what would possess that person to do that. Before we move on I wouldn't dong any of us a favor unless I mentioned that all of us have caused other people to have that same reaction.

Woe to the family court judge who has to sit in judgment of you and your spouse in a divorce trial. This is especially the case when you two are both good parents, take time to spend with your children and have no “red flags” like drug use, hostility towards one another or violent tendencies. You are now staring face to face with a judge who has been tasked with playing a tiebreaker on issues that are as important as where your child is going to reside primarily after the divorce. It’s their job to make decisions on these issues if you all cannot, but it is still not an easy thing to do. Most notably because, while the judge will get to know you and your spouse as a result of the trial, he or she does not know either of you personally and never will.

Your judge is going to have to weigh pretty complex factors that involve the law, your family dynamics, financial considerations and many more. It is not as simple, as maybe your attorney has told you, as looking up the law in the Code and making a decision as a computer might. This is where the subjective biases, opinions and perceptions of you and your spouse come into play. While most judges will do their best to suppress these subjective interpretations in favor of the objective standards of the law it is not possible to do so completely, nor is it required. Family courts in Texas rely on judges' abilities to analyze cases both from objective and opinion/subjectively based perspectives.

Can your judge see into the future?

Obviously, the answer to this question is, No. It is impossible to tell the future precisely but essentially that is exactly what you and your spouse are doing if you take your case to court for a trial in your divorce case. Past behavior can be a good barometer of future results, but as any financial planner will tell you it is not always the case and cannot always be relied upon. At least part of what the judge is doing is deciding, at least on a subconscious level, how likely you or your spouse is to perform well in a role as the primary conservator to your child. He or she will be placing their “bet” in part on evidence and in part on past performance.

Essentially your judge will be utilizing the "best interest" standard as laid out in the Texas Family Code. Unsurprisingly, this standard asks the judge to look at all the available evidence and make a determination about what is in the best interests of your child as far as custody, possession, visitation, child support, and any other relevant issue are concerned. While there is some case-law on this subject to help the judge in evaluating your case it is largely a subjective assessment that the judge is being asked to make. You and your spouse place a great deal of trust in the judge to be able to make this assessment.

Pressure on the trial court judge

When you are in a judge’s courtroom there is not only pressure on you, your spouse and your attorneys but also on the judge. The reason is that what your judge orders is likely what will be in effect for you and your family for many years as far as decisions regarding what is going to happen with your child. Most families do not appeal decisions from a trial court judge and even if you do appeal your case it is unlikely that your judge’s decision would be overturned and sent back for a re-trial, statistically speaking. If the judge doesn’t get it “right” the first time there could be significantly negative effects for you and your family.

Goals of a judge in your child custody trial

Just as you and your attorney will likely map out a plan with goals in mind for your divorce case, the judge also has goals that he must consider from the beginning of a case that he hears. Let’s spend some time thinking about what those goals likely are. After all- the opinion of the judge, not yours, your spouse’s or any family member that you have, is all that matters in the end. This is an appropriate analysis if you and your spouse end up going before the judge multiple times, even before a temporary orders hearing.

Judges have what is commonly referred to as a “docket” of cases that he must hear on a daily basis. This docket is typically very full of people just like you and your spouse who, for whatever reason, cannot seem to figure out solutions to your problems without judicial intervention. So, it is imperative for a judge to move cases along to best ensure that his docket stays as light as possible each day. The busier the docket the less likely your judge will be able to spend the necessary time required of each case before him.

More important than keeping a tidy docket, a judge will be looking to the overall well-being of your child. We've already mentioned that your judge will apply what is known as the best interest standard to the case, which basically means that he will need to determine what decisions of his will likely be the most beneficial for your child's mental, physical and emotional well-being. While judges do this all the time, it is their job, after all, it is still a pretty burdensome responsibility, all things considered.

How your child will develop is a crucial factor in this best interests determination. Depending on the age of your child he or she will be faced with different developmental challenges. Decisions regarding where he or she will primarily reside and with which parent your child will be living with will go a long way towards determining how well he or she meets those developmental challenges. So, your judge has to have some knowledge of how kids develop and what methods and environments would do best to foster that development.

Your parenting is fair game in a judge’s analysis

All aspects of your relationship to your child are fair game when it comes to a judge’s analysis of your case. How well do you and your child relate to one another? This can be a difficult question to answer given the age of your child and the inability of a judge to get a full picture of the situation, but your relationship with your child is important nonetheless. If you cannot show a judge that you have been able or willing to play an active and involved role in your child’s life that will certainly be a mark against you in this child custody case.

What sort of skills and deficiencies do you possess as a parent? We all have our strong suits and our weaknesses as parents and the purpose of your trial, in part, is to expose those for the judge to see. Are you terrific at being a provider for your child but not so good as actually being present in the home due to your hectic work schedule? What if, on the other hand, you are a loving parent who is present in the home but your problems with self-control and anger often leave you on the edge of acting inappropriately with your spouse or child? These are the realities that your family court judge will have to sort through.

Finally, consider what parenting skills you possess. For an infant or toddler, you would need to be able to show the judge that not only can you financially provide for your child but that you have the necessary parenting skills to ensure that your child thrives. If you have never spent an afternoon playing with a one-year-old or changed a diaper then good luck convincing a judge that you are better equipped to do so in comparison with your spouse (in most cases).

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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

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 one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are 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 Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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