Custody Rights of Fathers Getting a Divorce in Texas

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One of the most important decisions to make during the divorce process is which parent or parents should have custody of the children. There are several ways that this decision can be made, and several factors that affect this decision.

Process of Divorce and Custody

This decision is spurred when one parent files a Petition for Divorce or Suit Affecting Parent-Child Relationship. The spouses and their respective attorneys may have discussions about possible arrangements regarding the child’s living situation and how visitation may occur. The legal standard used to determine these decisions is the “best interest of the child,” meaning the best possible course of action for the child. This usually necessitates that the parents have an amicable parenting relationship.

Gender Preference

Many fathers enter into such discussions concerning their children with the assumption that the courts will favor the court system. In Texas, the sex of the parent cannot be used as a consideration in making custody decisions for children. This was specifically entered into the law through the Equal Rights Amendment in 1973 and continues to the law. Additionally, a paragraph was added to the Texas Family Code in 1987 that stated that Texas has an interest in ensuring that children have frequent and continuing contact with both parents, so long as this is in the best interest of the child.

Although the law clearly states that no such gender-based preference will apply, fathers often want to know how truthful these statements are and what the realistic outlook is for a father to be awarded custody. In most jurisdictions, statistics show that the mother more often is awarded custody, especially when the children are rather young.

Legal Custody

When discussing custody, there are usually two relevant terms. Legal custody refers to the rights of the parent to make important decisions regarding the child, such educational, medical and religious decisions. Texas favors joint legal custody in which the parents have an equal say in these matters so long as awarding joint legal custody will best serve the child’s interests. Joint legal custody requires the parents to work together, be actively engaged in the child’s life and learn how to make important decisions regarding the child.

Physical Custody

The other form of custody is physical custody. This term denotes where the child primarily spends his or her time. Parents may also have joint physical custody, even if the child does not exactly spend 50 percent of his or her time in each home. The parents may agree or the court may order to sole custody in which one parent will be the primary parent and the other will receive a right to visit with the child according to an agreement or schedule.

Custody by Agreement

Recognizing that parents best know their own children and dynamics, the Texas family court system encourages parents to make their own custody agreements. Unless a particular agreement would not be in the child’s best interest, the courts will usually defer to the parents and honor amicable agreements.

Court Decisions

If the parties are unable to come to an amicable agreement, one parent may petition for sole custody of the child. When making decisions regarding physical custody, Texas courts consider a number of factors, including the mental health and physical health of each parent, any history of domestic violence or child abuse and the health and safety of the child. If the child is at least 12 years old, the child’s preference may also be considered. The court will want to know which parent has been the primary caretaker before the divorce, meaning the parent who has taken the child to the doctor, prepared meals for the child, spent the most time with the child and put the child to bed.

Current Trends

Today, many fathers are just as actively engaged in their children’s lives as their mothers. Additionally, many households have two wage earners with both spouses working and spending similar amounts of time with the children. Texas law recognizes the father’s equal right to be considered as the primary custodian, and the courts may be more likely to award custody to fathers than they were two generations ago. Fathers who would like to learn about their paternal rights during the divorce process may wish to contact a family law attorney to discuss their rights and options.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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