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What Are My Custodial Rights During COVID-19? A blog post for Texas fathers

Custodial rights are an important aspect of parenting especially during a time like this global pandemic. When we talk about custodial rights, we do not mean only the ability to be in possession of your child and to spend time with him or her. Rather, custodial rights get into the ability to make decisions on behalf of your child and two careful and provide for your child on a consistent basis. These are the main aspects of conservatorship of a child in Texas. If you are going through a child custody or divorce case, then these are the issues that you will likely be negotiating on with your opposing party. 

There is an age-old debate in the world of family law between those who believe that the system is rigged against fathers and those that that believe the system is on the whole fair imbalanced. I can tell you from having met with many fathers in my wife is an attorney that the belief among most men is that the legal system favors women over men. Anecdotally, I can confirm that more women than men Are named as the primary conservator of their children as a result of a family law case. Whether or not this is due to an inherent bias in the legal system or not there does seem to be some evidence then at least the end result of a family law case seems to put women in a better position than men when it comes to being able to make decisions for their children. 

At its core, the Texas family code attempts to make known to parents and the legal community as a whole that the law in Texas does not favor either mothers or fathers. If your child custody or divorce case gets to the point where the judge is brought in to make decisions for your family, then he or she may not be guided by the gender of either party. There is no presumption under the law that women and mothers are better suited to care for children and make decisions for them than are men and fathers. Judges are to be guided by making decisions which are in the best interest of the children in your life. 

That is the case at least in theory. As we all know what happens in theory and what happens in real life can and often are two completely different things. What I am interested in is discussing with you today what are the custodial rights of a father during the COVID-19 pandemic. Do your rights and duties change in relation to your children Because of an ongoing pandemic? Do women tend to get the upper hand in times of crisis? Is there anything you can do to put yourself on more solid footing when it comes to negotiating over rights, duties and time with your children?

Has the pandemic changed the rights and duties that men have in relation to their children? 

Although it may feel like the whole world has changed since the middle of March the reality is that the laws in Texas regarding conservatorship in custody, I've children have not changed since the beginning of his pandemic. There is no reason to assume, for example, that judges would be more likely or would be more inclined to award superior rights and duties to mothers right now versus fathers. I think the tendency for men is to believe that judges are out to get them and that the law favors mothers. Taken Independently from any other subject this is not true. 

In reality, I actually think times like these may favor men rather than women when it comes to the assigning of rights and duties in relation to your children. I will explain to you why. Let's assume that you and your spouse are going through a divorce. If we remove issues regarding Community property division then we can focus on issues related only to your children.  There are basically two roads that I think custody rights can proceed down and they depend largely on the decisions that you make as a father. 

The path that your divorce could take in regard to custody rights shifts depending on the decisions that you make. If you sense hostility in your household in prematurely leave the home in order to allow the situation at home cool down, then you would be acting in much the same way that many fathers in your position do. I think the instinct is for fathers to want to diffuse potentially hostile situations meant to give their wife space. This may be in hopes of a reconciliation Were merely in hopes of preserving the comfort of the children. 

What you would likely do in that situation Is to leave the home and find another place to live rather quickly. If you have enough money in reserve, you may end up renting an apartment or at home that is within your budget. This may be the best-case scenario especially if you do not have any money to spend right now. If you fall into this category, then you may end up staying with a relative or friend who is willing to let you sleep in a spare bedroom or on a couch. In your mind you are doing this for your children, allowing them to stay in their home in exchange for you or leaving and removing the hostility that was being felt between you and your spouse. 

What would happen if you decide to then file for divorce and to ask the court for you to be named as the primary conservator of your children? The primary conservator of a child has the right to determine the primary residence of that child and to receive child support these are the two most significant aspects of being the primary conservator In addition to being able to make decisions on behalf of your child more frequently. I'm taking in combinations this is the best position to be in if you want to maximize your time with your child and your ability to make decisions on his or her behalf. 

Despite your thinking that you are doing something good for your family by leaving the home early, you may have ended up hurting your case if your intent was to have the best custodial rights in relation to your children possible. The reason for this is that if you ever have to go see a judge in this matter it is possible that that the judge could view your leaving the home before the divorce as you are willingly giving up time with your kids. If your intent is to somehow get back into the home and have that be your primary residence after the divorce, he would have an even tougher time convincing a judge that this is in your best interest and that of your children. 

So, by you're going through with an action that you felt was in the best interests of your child it could actually be viewed the opposite by a family court judge. Unfortunately, this is a move that I see many if not most fathers make in the approach of a divorce. Rather than stick it out and remain in the home fathers will typically attempt to take the high ground and leave the home so that their wife and children Can live in a more stable environment without the specter of mom and dad fighting constantly hanging over the family. 

This is where I believe mothers typically derive the largest advantage when it comes to the battle over custody rights. When all other factors in a child custody or divorce case are virtually equal any little advantage that a person can get may be able to swing the case in their favor. If your case is one where custody rights are contested, then you're choosing to leave the home voluntarily and giving up time and theoretically rights to make decisions for your kids in favor of your spouse then you may be at a disadvantage in your divorce or child custody case. This is exactly where I think most women tend to gain an advantage very early on in the divorce case. 

Bite your tongue, keep your distance and stay in the game as far as primary conservatorships is concerned

On the other hand, you could have chosen to remain in the family home as long as possible. Showing a continued commitment to your children Even when it becomes uncomfortable for you in the house maybe what it takes for you to start your case off on the same footing as far as custody rights with your wife. Again, when I hear people talk about father is getting the short end of the stick from judges in regard to custody rights it is often the case that the father has automatically seated points to his wife by leaving the house at the very beginning of the case. 

Additionally, your case will be strengthened If you can show a history of consistent parenting year over year in relation to your children. Judges become skeptical when fathers and mothers attempt to make arguments that they we're always there for their child when ample evidence suggests that the sudden interest of a parent and their children took place only right before the beginning of a child custody or divorce trial. Your attempts to argue that you are always there for your kids may ring hollow unless you can produce evidence of the contrary being true. 

A father who can stay in the family home as long as possible after a divorce begins, who can show that he has been present for the children both physically and emotionally and who desires to be a primary conservator of the kids has just as strong of an opportunity to be named primary conservator of the kids as does a mother who is similarly situated. 

How does all this relate to the COVID-19 pandemic? 

If you are a father who was going through a recently filed child custody or divorce case, then you should take heart and knowing that judges in the Texas family courts will probably never see your case go before them. The reason is that most family law case is settled in mediation or an informal settlement negotiations. This means that rather than turning your case over to a judge who does not know any of you and doesn't know your specific circumstances well cover you will be able to negotiate over custody rights with your spouse. 

This can be a bad thing if you know that your spouse is aware of your shortcomings as a parent and your relative lack of accountability when it comes to issues related to parenting. On the other hand, if you are a diligent parent, he was done everything he can to provide a stable and safe environment for the kids then you should have nothing to hide and should have no reason to be bashful about asking for primary custody of your children. It is up to you how to handle your custody case and you can be as aggressive or as complacent as you would like when it comes to asserting your rights. However, if your goal is to have equal custody rights when compared to your wife, or even superior rights when compared to her then this pandemic should not dissuade you from presenting your case as such. 

Questions about Texas family law or this blog post in particular? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week. These consultations can be had in person, over the phone or via video. We would be honored to speak to you about your family situation and the services that we can provide to you as one of our clients. 

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