There are some issues in family law that impact fathers disproportionately compared to women. An obvious example would be paternity cases, given that only men can be fathers. Once you have been determined to be the biological father of a child through genetic testing, the law comes into play where you are assigned certain rights and duties with that child. The commitment to support the child (often through child support payment) is an example of the kinds of rights or responsibilities you may have. In general, however, mothers and fathers start on equal footing when issues related to sharing time with kids are concerned.
As families have changed over the past few generations, so too have the roles that mothers and fathers have played. A couple of generations ago, you could predict with a great deal of accuracy that the family next door to you would have a mother at home to take care of the kids and the house. At the same time, the father would go out into the world to provide financially for the family. While that can still be the case for many families, more women are working in today's world than ever before. Additionally, fathers are more likely than ever before to be the primary caretaker of the kids.
One thing that I have heard fathers concerned with when speaking to you all is that an unmarried father (once found to be the biological and legal father of a child) has all the same rights and duties to their child as he would if he had been married to his child's mother. As such, you can make decisions on behalf of your child regarding their education, medical treatment, and ability to begin counseling or therapy.
In a divorce scenario, you would stand on equal footing with your child's mother regarding issues related to access, possession, visitation, and conservatorship. The Texas Family Code has codified this equal treatment under the law within the codebook. A judge would not be able to consider sex when determining whether you or your wife would become the primary conservator of your child. The facts and circumstances of your case would guide the judge rather than a preconceived notion of which parent ought to be the primary caretaker of your child.
The facts always matter (but they especially count in a family law case)
A judge is a fact finder if you want to get technical. Judges and juries listen to testimony, review documentary evidence, and then are charged with making determinations of fact as to a particular case. The judge in your divorce or child custody case would be in the same position were your case to make it to a courtroom. All evidence would be considered in light of the relevant law(s). From there, decisions can be made about you, your spouse, and your children.
The thing that I think is worth mentioning in this regard is that the facts seem to matter just a little more in a family law case. While the Texas Family Code does exist to guide judges on specific legal decision-making standards, it also allows judges to use their discretion in applying the law to your particular circumstances. For this reason, family court judges can make decisions that sometimes vary widely from judge to judge. The reason for this, primarily, is that your case's facts are different from the facts that are a part of the child custody case across the hallway.
What is your relationship like with your child, how much hands-on experience do you have in raising them, what is your work life like? Do you have many late nights throughout the week, or do you have a flexible schedule where you can pick the child up at a moment's notice to go to the doctor, for example? If you want to be named the primary conservator of your child, these are the sort of considerations that you should bear in mind.
Joint managing conservatorships: where you start and where you can go from here
If you are divorcing, then you need to know that it is incredibly likely that you and your spouse will be named as joint managing conservators of your children after your divorce. It is presumed that this is the arrangement in the best interests of your children, and as a result, that is by far the most typical arrangement set forth by judges.
A joint managing conservatorship means that you and your spouse will share nearly equally in the parenting rights and duties associated with your children. While the time you spend with your child will be different, your abilities to make decisions for your child may be nearly identical. This may surprise you on some level if people in your life have told you that you don't stand a chance at getting even "split custody."
The fact is that many fathers believe that their wives have a leg up on them when it comes to assigning parental rights, visitation, and possession orders in a divorce. The issue of child support also hangs over every conversation having to do with children in family court. For years and years, this feeling was justified because judges gave preference to mothers when it came to assigning custodial rights and duties as well as time for each parent to be able to spend with the kids.
Nowadays, however, this is no longer the case. We have already discussed how the law in Texas explicitly states that judges are not to give preference to one parent over the other in custody issues based only on sex. You stand a better chance now of getting split or even primary custody of your child than you would have in decades past. However, if you are not actively involved in your child's life, then all of this would be for naught.
Showing the court that you mean business (when it comes to parenting your children)
We have discussed how, in theory, you have a good chance at being considered for primary custody of your child or whatever goals you have for your particular divorce or child custody case. Unless you know how these theories are likely to play out in your specific case, these theories are meaningless to you. What you would need to provide to the judge is evidence of your role in your kids' lives. You and your spouse will be submitting evidence to the judge, and that evidence will be what a judge considers when making decisions regarding custody rights.
For instance, have you always played an active and involved role in the rearing of your children? If so, be prepared to show evidence of that—videos, photos, testimony from adults in your life, etc. If you want a judge to consider naming you as your kids' primary conservator, you must be able to show in the past that you have been capable in this role.
Next, if your divorce case is already ongoing and you have been assigned visitation time with the kids, you need to be present at every visitation session you have been awarded. If you can't take the time to see your kids now in the limited opportunities that you have, why would you be expected to do so after the divorce is over? Theoretically, it would help if you were on your "best behavior" now that your case is ongoing. If your actions show otherwise, a judge would likely pause before increasing your visitation and possession rights.
Do you know the names of your kid's teachers? What about their basketball practice schedule? How about the kids that your son hangs out with on the weekends? Are you the one driving them to the movies, the mall, or any other place kids hang out these days? This is a somewhat important factor as well since it can show a judge to what degree you are involved with the day to day life of your kids,
The other thing that sometimes trips fathers up is caring for their kids for long periods. I can think of my kids concerning this factor. If my wife has to be somewhere outside of the home when the kids are around, that leaves me to be the primary caretaker for that time. I want to think that I am just as capable of doing that as she is, but I sometimes have my doubts.
Are you willing to care for your kids for long, uninterrupted periods? Have you ever done it before? If not, a judge is unlikely to allow you to try it out as the primary caretaker of your kids for the first time. Eventually, you may be granted this right, but you will likely be assigned visitation time rather than primary custody for now.
Your memory gets hazy after a while- write down information for better recall.
What I tell clients to do is write down information about experiences that they share with their kids. These sort of first-hand accounts related to raising a family are great not only to help your attorney understand the dynamics of your household but, more importantly, to help the judge to understand just what kind of hands-on parent you are. All it takes is a little forethought always to have pen and paper ready. Short of videotaping every interaction with your child, this is probably the next best thing.
Ultimately what you as a father are trying to prove is your competence in raising kids. It is not your income that matters primarily or your willingness to sacrifice for your family. What matters is that you have a history of being present with your kids in helping to raise them. While we can discuss father's rights until the cows come home, this is what truly matters to family court judges.
What counts when determining the best interests of your child?
The tried and true standard in the family law world when it comes to determining any issue related to your child would be to examine what is in your child's best interests. This is otherwise known as the best interests standard. While this situation and analysis lends itself to judges making decisions based on their interpretation of the facts and circumstances of your case, the family code has also set forth some factors that a judge should use when making these decisions.
In no particular order a judge would consider: the specific needs of your child, your level of skill in parenting your child, your history of being a primary caretaker of your child, your work schedule, the work schedule of your spouse, the stability apparent in your home and that of your spouse, the distance you live from your child presently, and whether or not there is a history of abuse or neglect of your child.
When it comes to the critical decisions in your case regarding possession, access, visitation, and conservatorship rights, these are the factors that will be in play. Your rights are as good as you had made them out to be through your actions in parenting your child before the divorce even began.
Questions about divorce and father's rights? Contact the Law Office of Bryan Fagan
The attorneys with Bryan Fagan Law Office offer free of charge consultations six days a week to persons in our community with questions about Texas family law. To schedule your consultation, please give us a call today. These consultations are an excellent opportunity to ask questions and receive feedback about your particular circumstances. Thank you for your time and consideration, and we hope to see you here again tomorrow.