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How is child custody determined in Texas?

The most important part of any divorce or child custody case relates to children. This is obvious in a child custody case since only issues related to your children are relevant. In a divorce where all sorts of issues in addition to your children are discussed, most every parent who goes through a divorce would (hopefully) agree that the issues most important to them are still the kids. So, no matter what kind of family law case you are involved in your kids are likely to be at the top of your list of important issues. 

There are many relevant questions to want to ask yourself and your attorney at the beginning of your family law case. In fact, you would be wise to ask a lot of questions throughout your case in order to learn as much as you can about the family law process. The more you learn, the better decisions you can make. Ultimately you are the person who is responsible for the decisions made in your case. Your attorney is there to advise you and provide guidance but is not the person who should be making final decisions in your case. 

Custody issues are probably the most relevant to a person like you who is working through a child custody case. As we have discussed in recent blog posts term “custody” doesn’t actually appear in the Texas Family Code even one time. Rather, the term “conservatorship” is what most people are thinking of when they use the term custody. Conservatorship is basically the rights and duties that you have as a parent in relation to your child. The right to make decisions for them and the duty to provide your child with certain essentials of life. 

Possession, on the other hand, refers to what you may have heard referred to as visitation. If you are the parent with whom your children do not primarily reside with then you will have a possession schedule that you will have to follow. The schedule will tell you when you are able to see your children. Most of the time you will find that the end result is that you and your child’s other parent are named as joint managing conservators.

Do you have to go see a judge when it comes to conservatorship and possession issues?

I think one of the most common concerns that folks have coming into a family law case is how the judge is going to view their case. This is a reasonable concern to have, of course. If you were to believe television, the movies and the divorce horror stories that you hear from friends every family law case goes before the judge to rule on. What you will likely find is that your case never makes it to a judge, at all. 

Since the vast majority of child custody cases end up where parents are named as joint managing conservators, there isn’t much for a judge to ultimately decide upon in many cases. In some situations where parents cannot agree which one of them should be named the primary managing conservator, then a judge will likely have to intercede. This conservator has the right to determine the primary residence of the kids. Since this is such an important and fundamental question there isn’t much middle ground to negotiate on. As a result, disagreements usually have to go before a judge in order to reach a resolution. 

In other situations, where the disagreements are not as significant, you and your opposing party should be able to resolve your issues through mediation and negotiation. With the assistance of your attorneys and an experienced mediator you all are likely going to be able to negotiate and establish your own working orders that should go into effect after the case is over with. 

The nice part of being able to work directly with your opposing party on coming up with terms for your new orders is that you all know your situation much better than a judge ever would. Of course, you may have to overcome some differences in opinion with him or her, but your level of knowledge is going to far surpass the judge to be sure. The only thing that your negotiated orders have to do is be in the best interests of the child. Otherwise, you all are free to create your own reality for after the case. 

The whole point of creating a court order is to have something in place that will dictate your future behavior and ensure that either party can come back and enforce the terms of your agreement. After all- if you create orders that are not enforceable then they are not worth the paper that the agreement is written on. If your ex-spouse violates the court orders regarding custody in the future, you want to be able to take him back to court and have the judge address those alleged violations. The judge can then hold him responsible, if you prove that the violations occurred, and he can be penalized for having done so. 

Are mothers favored over fathers when it comes to custody issues?

This is a pretty common question that I receive from both mothers and fathers. There is an idea floating around out there that judges in Texas favor women over men, mothers over fathers when it comes to assigning custody rights and responsibilities. This may be rooted in history, given that for a long time women were explicitly favored over men when assigning conservatorship duties and rights. 

One of the realities of our modern legal system that you may not be aware of is that the Texas Family Code actually bars judges from considering sex/gender when making decisions regarding possession, visitation and conservatorship. The court must use the best interests standard when making decisions on these subjects. So, if you are a father reading this blog post does that mean that you have an equal shot to be named as your child’s primary conservator?

Unfortunately, I would not say that this is true. I think it is still true more often than not that mothers are more likely to be named as the primary conservator of children. This is due to a variety of factors that have nothing to do with a presumption that mothers are more fit to be the primary caretaker of children than fathers. 

The most important reason why mothers are typically awarded this right by a judge or end up with this designation in settlement negotiations is that mothers are more likely to fulfill most of the child rearing responsibilities in families. If you are a father to young children then you probably have a full time job that takes up a lot of your time. While your spouse may work, as well, it is likely that she has a more flexible job or even one that she works only on a part-time basis. This lends itself to your wife being more available to the kids on a daily basis. 

You may be an active and involved father, but it is not typical for your role to be greater than that of your spouse when it comes to parenting. This doesn’t mean that you are a bad father or that you need to start trying harder when you are with your kids. All it means is that your family falls into the same parenting roles as most other families who are in the same position that you are. 

Another reason why mothers have a leg up over fathers when it comes to being named the primary conservator of children is that prior to a divorce men are more likely to leave the family home when compared to women. This may be a good thing for a short period of time if there is a risk of violence or other problems in the home, but it puts you as a father at a disadvantage. The judge, if your case makes it inside the courtroom, will not look favorably upon a parent who voluntarily leaves the family home. Even if it was for a good reason, leaving your children to fend for themselves is how a judge may view that situation. 

So, if you are a father who is concerned about custody, conservatorship and parenting roles after divorce it is in your best interests to not leave the family home if at all possible Additionally, you should continue to play a role in the raising of your children during the case. It would be sort of silly to try to put on a show for the judge, i.e. to suddenly become parent of the year after a divorce has been filed. Otherwise, do not attempt to recede into the background just because your spouse has filed for a divorce from you. 

What is mediation and what role can it have on your custody case?

It makes sense to try and mediate your case if at all possible. Mediation allows a third-party family law attorney to come into your case and attempt to help you and your spouse work out a settlement of the outstanding issues rather than have to allow a judge to make the final decisions for you. If at all possible, you should seek to eliminate the chance of a judge having to make decisions in a custody case because you don’t know which way he or she will go. Mediation allows you and your opposing party to put your fingerprints all over the final outcome of your case. 

Customization is not something that is possible in most situations in a courtroom. The judge will do his or her best to craft an order that is in the best interests of your child but do not expect orders that conform perfected to you or your child’s life. Many parents are favor of a “split custody” arrangement where both parents have essentially equal access to the kids. Split custody is not really something that judges typically award to people, however. If that is an arrangement that sounds appealing to you then you would need to work out the details with your spouse in mediation. 

What can you expect to happen in regard to child custody issues in your divorce?

 Unfortunately, it can be a relatively long time in between the beginning and end of your divorce. At a minimum, your divorce would need to take two months since by statute that is the minimum length of time for a divorce to take in Texas. The state legislature wants to give people those two months to make sure that a divorce is really what they want to do. If you can use those two months to repair your relationship and save your marriage the state of Texas would be in favor of doing so. 

While the divorce is ongoing, you and your spouse will need to arrive at temporary orders. These are orders that would be in effect during the course of your divorce. You can either negotiate for these orders in mediation or attend a temporary orders hearing where a judge can hear evidence and come up with orders himself. Keep in mind that a temporary orders hearing is like a mini-trial and that what is come up with in temporary orders tends to guide what the final orders in your case will look like. 

Questions about child custody? Contact the Law Office of Bryan Fagan

The subject of child custody is one that is both complicated and important. With so much riding on what happens in your family law case, you are best served by having the counsel of an attorney who has working with clients in situations just like yours. The attorneys with the Law Office of Bryan Fagan offer that sort of experienced, high quality representation for family law matters. 

If you are interested, please contact our office today so that we may schedule you for a free of charge consultation. These consultations are helpful because they allow you to ask questions and receive direct feedback about your particular circumstances. 


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