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Can a father get custody in Texas?

The question of fairness is one that is central to our some of our main concerns as human beings. Am I being treated fairly by that person in the workplace? Are the rules regarding x, y or z treat participants fairly? I think it goes without saying that we want things in life to be as fair as possible, as much as possible. Maybe not equal outcomes but at least equal opportunity. That is what we want in our jobs, in our schools and in the legal system as well. 

In the field of family law I see a lot of people have questions about how fairly judges and the legal system at large treat people who file for divorce. They wonder if it is fair that they have to spend at least two months involved in a process that in many ways could take a long weekend to complete. Other people wonder if the kids are the ones who suffer the most in a long divorce case. Is it fair that the ones who had the least to do with the divorce are the one who are now having to go through the most?

I can tell you one thing: nothing in life is exactly fair. Whether or not the rules reinforce that lack of fairness is not for me to answer. What I can tell you is that the legal system does its best to administer fair outcomes based on the evidence available to the fact finder, i.e. the judge. The real question is whether or not the system is fair, but what evidence can you produce in a contested and adversarial process. If you can answer that question it will go a long ways towards answering whether or not the family law system is fair or not. 

All of this is to say that family law cases depend a great deal on what the facts and circumstances of your case are. Yes, family court judges rely on the law to guide their decisions, but I can also tell you that the individual circumstances of your case are just as impactful. If you are a father who is asking yourself what chance you have to get custody of your children in a Texas divorce, I have a second question for you. Namely- what sort of facts and evidence do you have to present to a judge?

Fairness- a goal, but also reality?

If you are going through a divorce right now as a father, I am sure that you have heard the horror stories from other men and people in general about how the family courts treat men and fathers. You will hear that judges have it out for fathers and that you don’t have a chance to win custody of your kids. You have the option to believe these folks and give up before the battle has even started, or at least learn a little more about the process where you can make your own conclusions. 

In reality, family courts do not give preference to men or women when assigning custody roles. That much is stated in the Texas Family Code. Judges are supposed to look past your sex and role in the family as either “mom” or “dad” and instead view the case based on your individual merits as they pertain to parenting your child. This should tell you a couple things. 

The first thing that this should tell you is that the State of Texas is aware that issues of bias against fathers is a reality. Most people, if you were to ask them whether or not judges have a bias against one parent or the other, would likely tell you that courts favor mothers. If the state believes that its citizens perceive a legal bias in regard to the most critical relationship a person can have, that is a problem. I imagine that this law is to address those concerns.

The second thing that this law should tell you about participants in divorce and child custody cases is that judges will likely go to great lengths to show just how unbiased they are. Now, every situation is different and you may end having a judge who you perceive to be unfair. However, from my experience many judges will go out of their way to show that they favor neither parent whenever the parties are in court together. 

What exactly does custody mean in Texas?

We have used the term “custody” a few times in today’s blog. It’s in the title of the blog post itself. We also hear this word used quite a bit in our culture in reference to a number of different subjects in the world of family law. As a result, you may be surprised to learn that the word custody is actually not a legal concept at all in Texas family law. While we use the word quite a bit, and you may even hear a judge say it, the family code does not actually contain laws that pertain to custody.

On the other hand, conservatorship is a concept that is mentioned in detail within the family code and is what most people think about when discussing custody. Conservatorship is essentially a breakdown of the rights and duties a person has in relation to their children. Right now, you and your spouse are conservators of the kids. The law enables both of you equal rights to make decisions for your child regarding where they attend school and what medical procedures to undergo. That is the essence of conservatorship. 

When your divorce starts up this is what your attorney will be guiding you in regard to just as much as the time that you are fighting for with your child. We may not think about it as much, but your ability as a parent to make decisions for your children is even more important in many ways that your ability to spend as much time with them as you would like. 

For the purpose of today’s blog post I would like to put our focus on the issue of time with your kids because that is what I think most of you want to read about. Do you as a father have the ability to win primary custody of your children in a divorce. Can you walk out of your divorce with you kids staying at your home more often than they stay at their mother’s house. Is there a possibility that this could occur in your divorce?

Don’t let the facts get in the way of a good story

I think that men have a valid argument to make about the legal system being unfair to men and favoring women, generally. Family court judges were quite open about their favoring mothers when it came to assigning possession and conservatorship rights of children in family law cases. However, those times have changed to a large extent. You wouldn’t hear a judge flat out state that she wouldn’t consider you for the role of primary custodian of your child.

However, what does happen in these family law cases is that fathers, knowingly or not, place themselves in a position where it is very difficult to make arguments to a judge about how they are more fit or better equipped to take on that role in their child’s life after a divorce. This is sometimes the hardest thing for dads to realize: that the facts of your life to that point in time may impact the proceedings more than anything you do afterwards. 

Let me explain this in greater detail. Your divorce case does not begin at the moment either you or your wife file the paperwork in court to start the case of. Keep in mind that the evidence that would be submitted to a judge will come from the months and years of your marriage that led up to that point in time. Your actions before you ever stepped foot in a courtroom or hired an attorney are what really matter here. 

What role have you taken in raising your kids? If you are like most fathers, you would have taken a role that is supportive of the mother’s primary role in parenting the kids. This may not be a bad thing, this may not be a good thing, but it is important. If your wife has spent your years of co-parenting kids taking the lead role in child rearing then you will have an uphill battle on your hands when it comes to trying to wrestle away primary custody in a divorce. 

Yes, judges will view which parent shouldered a majority of the burden of raising your kids in the years leading up to this divorce when deciding which one of you should be named as the parent with the right to determine the primary residence of the kids. When you think about the years and years where your wife did the heavy lifting while you did not, this is what should give you concern about whether or not you can “get custody.”

Concern yourself with what the judge thinks but don’t bet on seeing him or her

We’ve written about the judge like he or she is an ominous figure, looming over every step of your divorce. The reality of your situation is that you likely will never even step foot in a courtroom. Most divorces or child custody cases are settled in mediation. Mediation allows you, your spouse, your attorneys and an experienced mediator to hash out your differences in negotiations sessions. These situations more often than not yield settlements rather than court dates. 

What this should tell you is that you and your spouse will negotiate from positions of: what is the judge likely to do if we don’t settle? The mediator will do their best to guide you on this subject as well. Obviously you would not want to make a decision in mediation that would go against what you think a judge would rule on in court. For instance, if you decline a settlement proposal from your wife on custody you are banking on the judge siding with you on that issue in court. 

Your wife and her attorney know what their side of the story looks like, and by the end of your divorce they will know what your side of the story looks like, as well. All you can do is control the evidence that you can and present your case as clearly as possible. She knows that if you are pushing for primary custody of the kids then you feel strongly about the subject and are willing to put your money where your mouth is. The other side of the coin is that she also has a pretty good idea about whether or not the facts allow you to offer a strong argument in court. 

What can you do to give yourself a chance at primary custody?

Do not move out the house until a judge orders you to do so. Many fathers look at moving out as a way to maintain the peace in your home. Judges look at it as your not only ceding possession of the house but also possession of the kids to your spouse. Remain in the house with your kids as long as you can. Do not put anyone’s safety at risk but moving out early in the process could answer the question of who’s getting primary custody before it is even asked in court. 

You can’t go back in time, but if you have time before your divorce begins you should always take an active and involved role in parenting your children. This is a good piece of advice regardless of whether or not you ever get divorced but it goes double in a divorce setting. If your wife knows that you don’t have a leg to stand on when it comes to pushing for primary custody she will not be easy to negotiate with on this subject. However, if she knows that you can present a ton of evidence showing that you were just as involved in raising the kids as she was, then you will be a formidable opponent when it comes to the custody question.

Questions about divorce? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we presented 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 where we can answer your questions and address your concerns directly.


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