A divorce is not easy especially when children are involved. If you are a father who has been served with divorce paperwork out of the blue, then you are likely feeling a bit overwhelmed and possibly even lost. If your head is spinning with thoughts regarding the breakup of your marriage and concern over the future of your relationship with your children, then you have come to the right place. The Law Office of Bryan Fagan is going to spend the next few days discussing with you the child custody and property issues that are inherent in Texas divorces.
Many people will tell you that courts and judges favor women over men, and mothers over fathers. I don’t think that this is necessarily the case, but I do believe that men can be led to feel this way if they are not well prepared for their divorce and do not know what to expect out of the process. If you have played an active and involved role in your child’s life and want to fight to be named as the primary conservator (caretaker) of your child, then you have every right to do so.
Beyond issues that center around your children, you have to be aware that you may have to respond to allegations of violence in your home. You may have never lifted a hand against your wife or even engaged in angry dialogue, but many men going through divorces have to contend with unfounded allegations of violence. In addition, you may need to be aware of what your spouse can pursue as far as spousal maintenance concerned. Alimony may be a topic that you hear about a lot in movies and television, but it is a real-life subject that many people have to consider in conjunction with their divorce case.
Increase your chances of having as much time with your children as possible
At the end of the day, all you can do in preparing for your divorce case is to learn as much factual material as you can and then apply that material against your individual circumstances. While individual results may vary, you do not have to wander into court on the day of your first hearing without any knowledge of how your case could turn out. You and your attorney are a team and your job is to provide your attorney with information that can help him or her guide you as best as possible in your case.
One thing that I want to note at the outset of today’s blog post is that it is not in your best interest at any point in your divorce to get upset and “quit.” No, I’m not saying that you will outright give up and move on with your life in disregard of your children. But we have all been in situations where we have become frustrated and felt like nothing we did was worth anything. That all our efforts resulted in nothing beneficial. I would caution against falling into this mindset. The bottom line is that you will be getting a divorce no matter what your attitude is like. What can happen is that if you become disengaged from your divorce you may end up losing time with your children when the case is all said and done.
Viewing child custody like a business transaction
As weird as it may be, it is not a bad idea to think about your divorce like you would a business transaction. Ultimately you are dividing up the important things in your life while you go through a divorce. You wouldn’t bat an eye at the thought of dividing up your personal property within your house, and you should become familiar with the idea of dividing up the time with your children as well.
The term that most people will use when referencing time and rights in regard to your child is “custody.” The first component in custody is the time that you are able to be in possession of your children. Where your child lives primarily and how much time your child will spend with the other parent defines this area of divorce law. Either you or your wife will be named as the primary conservator of your child. This is the parent who will be able to determine the primary residence of your child and also receive child support. The other parent will be a possessory conservator who will have visitation rights and also pay child support.
In Texas, most of the time you and your spouse will share custody of your child through a joint managing conservatorship. This term refers to the sharing of time with your child as well as the rights and duties of parenting your child. In limited circumstances “sole custody” is a possible outcome as well, but typically those situations are limited to ones where you or your spouse have engaged in behavior (drug use, violence, etc.) that lead a court to determine that sustained contact and decision making on behalf of that spouse is not in the best interests of your child.
In terms of rights and duties associated with your child, you will be responsible for being able to contribute to the decision making regarding medical treatment, educational choices, religion and day to day management of the child’s finances. Many of the rights that you hold will be held in tandem with your ex-spouse. You all will need to be able to co-parent in order to exercise your rights most effectively in the best interests of your child.
Joint custody: Difficult, but ultimately in the best interests of your child
Courts in Texas favor joint custody of your child and presume that this arrangement is in his or her best interests. It may seem counterintuitive for parents who are going through a divorce to be pushed into a situation that forces you to work together, but that is exactly what this arrangement does in regard to parenting your child. While it can and may very well be difficult to work with your ex-spouse when it comes to raising your child, that is exactly what the state of Texas is going to ask you to do.
What you will have to learn how to do is to set aside your feelings towards your ex-spouse and move on to be able to approach the raising of your children like an adult. It is impossible to remove all of the emotion from any relationship with a person that you care about (or at least used to care about), but your child needs the input of both their parents to be successful. How you and your ex-spouse coordinate the raising of your child will be up to both of you.
Relatively speaking, more power is afforded to the parent who does not have the right to determine the primary residence of your child under a joint managing conservatorship than may otherwise be available. Typically under a Standard Possession Order, you will be able to be in possession of your child nearly 45% of their time. If you are able to negotiate or have awarded to you an expanded Standard Possession Order that percentage goes up even more.
What the joint managing conservatorship also does is force your child’s primary parent (if you are not awarded these rights) to work with you on important matters even when you are not with your child. This should provide you with some peace of mind that your ex-spouse is not doing whatever she wants with your child while you are not around to speak your opinion. If something doesn’t look right to you, or your ex-spouse is pushing for something that you disagree with, you have the ability to vote “no” and put a stop to their plan.
Joint custody does not have to mean a 50/50 split in the time with your child
Many fathers come into the Law Office of Bryan Fagan for a free of charge consultation and will tell me that their end goal in their divorce is to win 50/50 custody of their child. In their mind, this means that their child will not reside primarily either parent and will instead split time evenly between their mom's house and their house. I've also come to learn that in many father's minds, 50/50 custody means that there is not going to have to be any child support paid. More on that later.
Most commonly, joint managing conservatorships have split custody for your child on a fairly even basis. However, this does not mean that custody is going to be split down the middle 50/50 perfectly equally between you and your ex-wife. If you are not named as the primary-joint conservator of your child then you will likely not be awarded exactly 50% of your child’s time by a judge. However, if you negotiate successfully with your wife in mediation it is possible to get close to that number.
What a court will not want to do is further disrupt the life of your child by implementing a complicated visitation schedule for you and your wife. No matter how close you choose to live to your child once your divorce has been finalized, transporting your child is a huge part of living in southeast Texas and being a divorced parent. As such, if your case goes all the way to a trial a judge is likely to set up a visitation plan that minimizes travel and the headaches that are often associated with it.
Work with your attorney to arrive at a plan for visitation that works with you
You should ask your attorney early on in your case to sit down with you to game-plan for a visitation schedule that is what you want. You may have a work schedule that necessitates that you have extended time periods away from your child but also allows for extended time periods at home. Make this known to your attorney early on. This is a unique feature of your case and will need to be negotiated for and taken into account.
If you and your wife are both able to show a judge that you have cared for your child on a consistent basis then you both have good claims to become the primary caretaker of your child. If nothing else, you can also show a judge that you are capable of caring for your child just as well as your wife can. For many fathers, this is a huge hurdle to overcome. If your child has displayed a strong bond with you that is something that will need to be shown to the judge.
The other thing that works in your favor if you want to be granted 50/50 custody rights with your child is a good relationship with your wife. The simple truth is that if you choose to split your child’s schedule with you and your wife, you all will need to work together more closely than you would under a Standard Possession Order. If you cannot problem solve and work with her on changes in the schedule that come up, then a 50/50 schedule may be difficult to achieve.
Last, you need to consider the age of your children. Older children and younger children may do better with a 50/50 split because they can either drive themselves places (older kids) or have no place to go on a daily basis (younger kids). Kids in that in between age period may find that the increased transportation and/or time away from both parents may make 50/50 splits harder to manage.
Are you a dad with questions about your divorce? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan take pride in representing men and women across southeast Texas. If you have any questions about the material that we discussed in today’s blog post please do not hesitate to contact our office today. We can schedule a free of charge consultation where your questions can be answered and issues addressed directly by one of our licensed family law attorneys.