Ultimately what you are attempting to figure out regarding your divorce case is what is in your best interests and what is in the best interests of your child. As a father, you may not have been at home with your kids as much as your wife has, but you still wanted to do what was best for them. Your work ethic and the resources that you have provided to your children are a testament to this.
Now that you are going through a divorce you must ask tough questions about the future of your relationship with your children. What will be the best set-up for you and your child as you begin a new phase of your life? What are the chances that your soon-to-be ex-spouse agrees to what you offer in mediation as a settlement on custody? If no agreement can be reached, what are the chances of convincing a family court judge that what you want to see happen come to being?
The facts matter in family cases- except when they don’t
Family court cases oftentimes end up being less dependent on what the laws are and more dependent on the factual circumstances of a case. Meaning: judges have a wide degree of latitude when it comes to making decisions that can impact your case. The circumstances of your case may dictate that a judge do something that would be unthinkable in other situations. The point is that you and your attorney need to take a long, hard look at your facts before developing a strategy to achieve whatever goals you have in your case.
You ought to look at the history of your family to see what roles you and your wife have played when it comes to raising your kids. If you have taken a backseat to your spouse (for whatever reason) then you will have a tough time justifying your position that you need to be the primary caretaker of your children after your divorce is completed. However, if you want to be able to gain those rights in the future (perhaps via a modification) you need to be aggressive in your negotiations now.
What sort of role have you taken to this point when it comes to raising your child?
Since the time that your child was born how active have you been in taking care of him or her? A court will look for evidence that you have been an active and involved parent. It may be frustrating to hear, but even if you have been gone from the house for work or other legitimate reasons, it will be tough to argue that you should be named as the primary conservator of your children in a divorce case. The reason is that you don’t have a history of being the primary caretaker. You can get to that point over time, but now may not be the best opportunity for you to make that argument.
Specifically, I have found that judges care about who has gotten your child up and ready for school in the mornings, who has shopped for groceries and clothes for the kids, who cooks meals, provides transportation and plays with the children (or does other age-appropriate activities). For the most part, judges do not want to change the status quo any more than is necessary. Means, that if your judge learns that your spouse has done most of the child-rearing and you have not engaged too much with your kids on that level then it is likely that the judge will allow your wife to continue with that responsibility.
Hold on a second, you may be thinking. Why should your wife get to take on that role just because that has always been the way your child has been raised? Doesn’t it matter that you do everything that you can to raise your child in the time that you have with him or her? While that does matter on some level, the reality is that the judge is not in a position to learn nearly enough about your family in a short hearing. That judge is forced to make a decision that relates to the well-being of your child. When pressed, the judge is likeliest to stick with what the current division is between you and your spouse.
A judge is not telling you that you are incapable of parenting your child if you are not named as the primary caretaker of your children. However, what the judge is saying is that there is insufficient evidence to flip the parenting roles at this time. Over time, and if the circumstances of your family change, it may be that you become better suited to take on these responsibilities.
The future is important to a judge when considering parenting roles
As I just noted the future circumstances of you and your wife will be considered before he or she names one of you as the primary conservator of your children. While your spouse may be well situated at the moment to care for your children primarily, you may offer a better environment in your new home to be able to do so. Let’s consider a few of the factors that a judge would likely look to when considering which parent is better suited for primary parenting responsibilities- now and in the future.
Where will your child go to school? What environment is the best for her educationally?
First of all, your child is obligated to attend school through high school in the state of Texas. One of the most significant parts of your child being able to meet their potential is to stay in school and do what it takes to succeed in that environment. As such, a judge would want to do what is possible to ensure your child is educated. The choice of schools, between the one, zoned to your future home and the one zoned to your spouse, plays a major role in this determination.
Are you and your spouse planning on staying in the same school district after your divorce or will you be moving elsewhere? Does your child do well in the school they currently attend, or has their struggles academically become a major issue in your case? Many parents in mediation settings will agree to a geographic restriction where both parents will remain in a certain school district because those schools offer a certain program for disabled children or because the academic success of that district is particularly high.
On the other hand, if you are planning on moving across town from your child to be closer to work or for any other reason, a judge would likely want to know what school is zoned to your new home. If there is a significant downgrade in the quality of the educational environment near your new home that is something that would be very relevant in a judge’s determination.
Who has a work schedule that is consistent from week to week?
The fact is that many of us in 2020 do not have work schedules that we can set our watch to. “Side hustles” are commonplace and people across the world are striving to achieve multiple streams of income that can help us to pay bills, save for college expenses for our kids, and build up equity in our homes. With these side hustles comes a certain degree of unpredictability in our schedules.
Unpredictability is fine when you are a single person out there in the real world just trying to make a dollar. However, when you have kids you will need to be accountable not only to your employer but also to your kids. A judge will be interested in your work schedule to see if it is conducive to either being named as the primary conservator of your kids or as being a part of a flexible custody arrangement.
Think about the needs of your child daily. As I touched on a moment ago, your child’s ability to attend school is the most important aspect of your child’s life to a judge- outside of their being in a safe environment in your home. So, if you have a flexible work schedule that allows you to be at home when your kids go to school and finish up with school for the day that is a huge advantage for you.
It is a difficult tightrope to walk when it comes to employment. On the one hand, I have demonstrated to you how important it is for you to have a flexible work schedule. Judges don't usually get excited to award primary custody of a child to any parent who works 75 hours a week. On the other hand, judges typically favor parents who have stable careers over those who do not.
Where will you be living after your divorce?
This question is tied strongly to the first two questions as well. Where you live is often dependent on the income you earn. Where you live will also determine where your children go to school unless you can send them to a private school. Your neighborhood should be one that suits your child as far as the livability of your home and the safety of the neighborhood. How close is your home to your child's school? How stable are you in your residence? Will you be renting or buying? Can you stay in the family home if there is only one income to pay the mortgage?
What other family-related situations are in play during your divorce?
Do you have children from a prior marriage who live with you? Do your children have a close relationship with their step-sisters and brothers? If so, that could be a point in your favor because judges typically do not want to break up family units like this. Remember that judges do not like to separate brothers and sisters from one another, so it is not likely that a judge would allow one of your kids to live with you primarily and the other to live with your ex-wife.
Be prepared for a little mud to be slung by your wife
If you are fighting to be named as the primary caretaker of your children then this will probably not make your wife all that happy. I have seen men and women alike allege some pretty nasty things about the other parent during this stage of a temporary orders hearing or final trial. Evidence in the past that relates to drug use, alcohol abuse, mental instability, or family violence will be raised at this stage. The stakes are high so do not be surprised to see your spouse allege some things about you that may not be entirely accurate.
What role will your child’s preference play in determining which parent is the primary conservator?
At the outset of tomorrow's blog post from the Law Office of Bryan Fagan, we will discuss the role that your child's preference will play in determining which parent will be named as their primary caretaker.
Until then, if you have any questions about the material that we have covered today please do not hesitate to contact the Law Office of Bryan Fagan. We handle family law cases from across southeast Texas and do so with a great deal of pride. It is our pleasure to be able to sit with you in a free-of-charge consultation six days a week. These consultations are a great opportunity to ask questions and have your specific issues addressed by one of our attorneys.
We serve on behalf of members of our community- people just like you. Across the courts of southeast Texas, we have earned a reputation for putting our clients first and working tirelessly to help achieve the goals of our clients. We would love to hear from you and appreciate you spending some time with us today.