Custody Rights of Fathers in Texas Divorce Cases

When a husband and wife make the decision that “until death do you part” can no longer apply to their relationship, there are so many emotional decisions that need to be made.  Who will move out and who will stay in the house?  How do we tell our families?   How will we be impacted financially?  Do we need a third party to help us work through the separation of our assets and debts?  When children are involved, all of these other questions become secondary to determining the best possible course of action for the kids, which Texas law calls the “best interest of the Child.”  No matter the current state of feelings by either adult party towards one another, it is beneficial to the family to continue as much as possible with an amicable parenting partnership.  This process begins when your lawyer files the Petition for Divorce (or Suit Affecting Parent-Child Relationship) and discussions take place among the parties (and the attorneys) concerning where the children will live and how visitation or conservatorship will occur.  In Texas, many fathers enter into these negotiations with the assumption that the mother will be favored by the court system.  However, recent decisions have shown that this is not necessarily the case.

The family courts in Texas encourage joint legal custody, also known as “joint managing conservatorship,” for divorcing parents, as long as such a situation would not impair the child’s health or emotional development. With joint custody or conservatorship, both parents are actively involved in the lives of their children, working together to make decisions concerning education, health issues, religion, discipline, etc.  The Texas family court system encourages parents to make their own custody arrangements, and usually will honor any amicable agreement that is reached by both parties if it is in the best interest of the children.

However, there are legal guidelines in place in Texas if the mother and father need a third party to assist with the negotiations.  One parent is usually awarded sole physical custody, with the non-custodial parent receiving regular visitation.  Texas courts use the following criteria to decide which parent will be awarded physical custody; the health and safety of the child, the mental and physical health of the parents, the preference of the child if he or she is at least twelve years old, and any history of child abuse.  Please note that nowhere in the list of relevant factors in custody disputes is the phrase “parent is female.”

All you fathers need to read this closely.  In Texas,gender cannot be used as a consideration in determining who receives legal or physical custody of a child.  Texas adopted the Equal Rights Amendment in 1973 and, in doing so, asserted that during custody cases the court shall consider the qualifications of the respective parents without regard to the sex of the parent.  Additional legislation was added to the Texas Family Code in 1987 and stated: “It is the policy of this state to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents who share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.” These two laws are the cornerstones for assuring fathers that they will not be removed from the lives of their children upon the dissolution of a marriage.

Many dads understand that the law clearly states that the gender of the parent cannot be used to determine custody, but still want to know what their realistic chances are to be awarded custody of their children.  In most instances and jurisdictions, the courts do still tend to favor the mother, particularly when the children are quite young.  However, the court will ask who has been the primary caretaker leading up to the divorce, with responsibilities such as putting the child to bed, going to the doctor, making dinner, and all of those other ongoing tasks.  If the father has proven to be the more nurturing and attentive parent during the marriage, the court may not hesitate to place the children with him.

One interesting case that may set an important precedent concerning the rights of fathers in custody battles is taking place right now in Texas.  Shawn McDonald is the birth father of a four-year-old boy who has lived with his adoptive parents, Travis and Sabra Hess, since birth.  This young boy resulted from a relationship that Mr. McDonald had with a woman named Samantha Myers.  The couple broke up before Ms. Myers even realized she was pregnant, and she decided to give up the baby for adoption.  Mr. McDonald has been engaged in legal battles for years, and just last month a new trial was ordered in his efforts to establish paternity and become the managing conservator, which means he would have physical custody of his son and the right to determine his son’s residency.  Shawn McDonald claims that the LDS Family Services group that facilitated the adoption kept him from his child and tried to force him to give up any prights.  All of these accusations will now play out in the same court in which the judge ruled against Shawn McDonald in the original trial. While this is not the traditional custody dispute that occurs between two parents who are divorcing, the deference that the court chooses to show to a father even though he has never had custody of his preschool-age son will be telling.

When a marriage ends, the decision to split is much more complicated than two people deciding not to live in the same house anymore.  Extended family members, mutual friends, and, most importantly, children are also affected.  While everyone’s life situation will necessarily change, steps can be taken to make sure that the children experience as little of the negative effects of the divorce as possible.  A generation ago, it would have been assumed that the mother would receive custody of her children and likely set many of the ground rules for her ex-husband’s involvement in their children’s lives.  However, the Texas courts today are recognizing that fathers deserve an equal opportunity at parenthood and the state of Texas is seeing more situations in which the father is given primary conservatorship.  If you are a father in Austin, Houston or San Antonio and you are going through a divorce and you want to seek custody of your kids, you should contact an experienced family law and divorce attorney who will help you present the best case possible.