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Father’s Rights in Texas: What role will your child’s preferences play in your divorce?

As a father, you likely have concerns about how your divorce or child custody case will unfold. Not the least of your concerns may center around how “fair” the process will be or what chance you have at being able to win primary custody of your children. I think we have all heard at least one story from a friend or family member about how an unfair judge or unfair laws negatively affected a father’s family law case. 

Whether these stories are accurate or not, they can have an effect on how you approach your case. If you go into your case with the belief that the deck is stacked against you then you will likely not present yourself as a viable candidate to be named primary conservator of your children. The reality is that the laws and judges are obligated to approach the issue of custody as unbiased. This means that you start off on the level ground with your wife. Now, the circumstances of your case may provide either of you a leg up but that is something that a judge cannot help.

When it comes to your family law case, you may have heard that the preferences of your child can tip the scales in one direction or the other. You or your spouse may have even had a conversation or two with your child about where he or she wants to live primarily. I have had many fathers (and mothers for that matter) come into the Law Office of Bryan Fagan stating that they know that their son would tell the judge that he wants to live with our client primarily. Is this all it takes to win primary custody? Let’s discuss that topic here at the outset of today’s blog post

How much weight do your child's preferences carry with a judge?

When it comes to determining where your child will be residing primarily a judge will be interested in learning as much about your family’s circumstance in order so that he or she can make decisions that are in the best interests of your child. You and your wife may have both played significant roles in the raising of your child and in his or her day to day care. If this is the case you and your spouse may need to seek every advantage you can get in order to tip the scales in your favor.

This is where the opinion of your child can be important. Depending on the age and maturity of your child, the preference of him or she as to where he or she lives primarily can be significant in the eyes of a judge. I cannot say that it is going to be the most important piece of evidence but it will carry some weight. As I mentioned a moment ago, however, it is rare when you and your spouse both present even or nearly even cases as far as being named the parent with the right to determine the primary residence of your child. As such, the opinion of your child on this subject rarely is the deciding factor in a case. 

What actually happens when a judge questions your child about where he or she wants to live?

This is the million-dollar question as far as this topic is concerned. There are no set guidelines that a judge has to follow when questioning your child about his or her preference as to where they live primarily. In reality, what a judge must do is make a determination as to whether or not your child's preference is organic or was influenced unduly by you or your wife. Sometimes parents will place pressure or attempt to sway the opinion of their child. Judges can usually determine if your child has been under the sway of you or your wife, one way or the other.  

All of this is to say that you and your spouse will not be allowed in the room with the judge when he or she conducts an interview with your child. Allowing you all to be present would play a great amount of pressure on your child to testify in a certain way and would not give your child a full opportunity to speak his or her mind on this or any other subject. The judge does not want to hear more talking points from either you or your wife- he wants to hear from your child about their honest opinion and preference.

Appointing a guardian ad litem to your family law case

Many times, a judge will appoint an independent attorney known as a guardian ad litem to your case in order to represent the interests of your child. This guardian is an attorney whose job it is to speak to your child privately about their life, your case and the circumstances that surround either. That guardian ad litem will be charged with making a recommendation to the judge on all of the important issues of your case. 

The age of your child will play a role in the judge's ultimate determination

I think it goes without saying that the older your child is, the more weight that the judge will give to your child's opinion. Older children (theoretically, at least) are more mature and better equipped to provide worthwhile testimony about your family and their living preferences. It is probable that your child has a closer relationship with one parent more than the other. Other important considerations that a judge will make regarding your child's preferences is which parent is closer to school and friends or if either parent has acted inappropriately with the child in the past.

Child support: What do you as a father need to know in order to succeed in your family law case?

Whereas with custody and visitation there are a lot of factors in play that can impact the results of a case, child support is based on math than any other factor. Specifically, the net monthly resources of you and your spouse will be an issue in addition to the number of children that are involved in this case. The Texas Family Code has a guideline level of support that is covered in detail. There are factors that can either increase or decrease the amount of child support that is to be paid, however. 

The paying of child support presumes that one parent will be named as the primary conservator of your child and the other will be the possessory conservator. In child support language primary conservator equals custodial parent, while possessory conservator equals noncustodial parent. The custodial parent pays child support while the noncustodial parent pays child support. This is obviously a huge distinction and as a result, being named as the primary conservator is crucial to being able to receive child support.

What is child support supposed to pay for?

What many fathers do not understand at least at the outset of their case is that child support is not intended to allow your child to live a certain kind of lifestyle or to continue to be able to live in the manner to which you all have become accustomed. Rather, child support in Texas is intended to help your child achieve a basic level of subsistence as far as having a roof over their head, food, shelter, and clothing. Unless we are discussing very rare circumstances, extravagant lifestyles are not going to be financed by child support alone.

In most cases, child support is not an issue that is discussed at divorce or child custody trials because the statutes dictate what is to be paid. However, if you are going to take on the role of the noncustodial parent and will, therefore, have to pay child support it is possible that you may not agree with the level of support that your spouse is proposing. It will be up to you in a trial or temporary orders hearing to counter their proposal. 

Keep in mind, however, that while child support is not designed to pay for extravagance in the life of your child, the amount that you or your spouse pay in child support can and will change over time if your income were to increase or decrease or the needs of your child were to change. For example, if you received a raise that allowed your income to increase dramatically, your ex-wife could ask that your child support obligation be modified. In the same way, if your child were to develop a medical need that required consistent care the amount of child support could be increased in order to compensate for the increased costs associated with that care.

The needs of your child take precedence over the needs of you or your wife

No matter if it is you or your wife who makes an argument about the child support, the judge will be looking towards what is In the best interests of your child when it comes to making decisions regarding child support. Your argument that you have a lot of bills or your wife making a similar argument may not sway the judge to either increase or decrease the amount of child support that needs to be paid.

The default setting of a court is to assess a child support obligation at whatever the Texas Family Code lays out in its guidelines. Of course, you and your spouse can bypass the opinion of the judge by agreeing to a level of child support in mediation. If you cannot come to an agreement, however, the judge will play a tiebreaker.

If you pay child support what control do you have over how the money is spent?

The amount of child support that you end up paying will likely go through the Office of the Attorney General and then will be sent to your ex-wife for the benefit of your child. It may happen that your ex-wife earns a good salary (which may even exceed your own) and the money that you pay in child support is not needed to care for your child’s basic needs or anything close to that. It is presumed by courts that the child support money is being used to benefit your child and to go towards their basic needs. 

In order to present a case to a judge that the amount of child support that you are paying is too much, you would need to show that the money being paid is not going towards the benefit of your child. Since the state of Texas does not and cannot track how those dollars are spent it would be exceedingly difficult to make a case like this.

Either way, your responsibility (under most circumstances) in Texas to pay child support ends when your child either turns eighteen or graduates from high school- whichever occurs later in time. If your child is disabled, or your ex-wife is, then you may be ordered to pay support longer than this time period. 

Questions about family law cases in Texas from the perspective of a father? Contact the Law Office of Bryan Fagan

Thank you for spending some time with us today discussing this issue. If you have any questions about the subject matter that we discussed, please contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your individual circumstances directly. We represent clients across southeast Texas and take a great deal of pride in doing so. 

The information that we have provided you all with today is intended for the benefit of fathers, but our office represents mothers and fathers, men and women in a variety of family law cases. Whether yours is a divorce, child custody, adoption or CPS case, we are equipped to provide you with a high level of customer service in representing you and your family. We look forward to being able to speak to you about your case and how we can best serve you. 

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