In my time representing fathers in Texas divorce and child custody cases, I can report to you that almost across the board the result that fathers want the most, in terms of time with their children, is to be able to have their children split time evenly between themselves and their child’s mother. I don’t know if this is coming from a place of fairness or somewhere else but fathers almost always want to be able to have their child split time between parents in an equal fashion.
When it comes to mothers in their children I can report to you that at least anecdotally this is not the case. Yes, some others will tell me that their goal in a Visitation and possession scenario is for their husband or child’s father to have his much time possible with the kids. It seems like in many more situations mothers are more aggressive when it comes to their expectations for possession and Visitation. For the most part, mothers expect to be awarded primary custody and will even use words like Sol Cassidy in conjunction with this issue.
The question we need to ask ourselves is what is primary custody and what is sole custody? As with many things in the world of the law, it seems like the general population may have a different interpretation and understanding of what these concepts are compared to what they are under the law. I think these are important questions to ask because the outcome of family law cases depends so much on specific or factual circumstances involved in your case. They also depend on the goals of each party and your willingness to fight for those goals.
If you are a father who wants to be able to when as much time with your children as possible in your family law case then today’s blog post is for you. I would like to walk you through some of the more essential information related to this subject as it pertains to custody, possession, and Visitation. On top of that, I would like to share with you my thoughts on why it is fathers tend to end up feeling like they did not when enough time with their kids in the child custody or divorce case they were involved in. The answer may surprise you.
What is primary custody?
A term that you will hear used quite a bit, both by judges, lawyers, and clients in the world of family law is primary custody. Primary custody generally refers to the ability of one parent to exercise decision-making responsibilities for the child regarding a few specific areas in particular. In a Texas family law case that involves children, the most common designations for parents as a result of a case are joint managing conservators.
This means that you and your co-parent will share responsibilities, decision-making abilities as well as time with your children in a fairly even fashion. The thought behind this is that the state of Texas presumes that your child will benefit from having a solid and longstanding relationship with both you and your co-parent. This is why the default setting in a family law case is to name both you and your Co-parent as joint managing conservators.
However, in certain situations, your family may find yourselves in a position where a sole custody arrangement is more appropriate. You see this more so in cases where either one parent has proven himself or herself incapable of making good decisions for the children or preventing harm from befalling the kids or in a situation where one parent is simply out of the picture for any number of reasons. In those sorts of scenarios, a sole managing conservatorship may be appropriate for your family. The sole managing conservator can exercise greater rights and duties about the children and also spend more time with the children.
However, a sole managing conservatorship in a Texas divorce is uncommon, to say the least. As noted earlier, the default setting in a case like this is to be named a joint managing conservator over your children. If you were to go to court to have a judge settle the issues of your case then that is likely what the judge would hand down. Attorneys and parties alike understand this and that is one of the reasons why cases so infrequently go to trial. When you have a good idea of what the judge is going to say there is little need to risk money in time going through with a trial.
How worried should you be if you hear that your spouse wants sole custody of the kids in your divorce?
It is reasonable to be concerned when you hear your spouse talking about asking a judge for sole custody of your children. To me, when I hear the word sole I tend to think about only the parent with custody being able to spend time with the kids. My training as an attorney tells me that that is not the case in reality but I’m just letting you know that’s where my mind goes. I’m willing to bet that that is where your mind goes as well. I’ve had more than a handful of fathers come into our office concerned given the threats being made by their wives at the outset of a divorce.
Hearing that your wife is pushing for sole custody of the kids can be a scary and intimidating experience. It automatically puts you back on your heels and you are beginning your divorce case on the defensive rather than on the offensive. Whether or not that was her intent, it is a good strategy to implement if you are my mother. You can cause your husband trepidation intimidation at the idea of pushing harder for split custody or something similar. This is a major problem for many fathers as they approach a divorce.
The reality is that unless you are in a compromised position as far as your parenting history then you have little to worry about in terms of losing a joint managing conservatorship in your divorce. Situations where abuse has been apparent in the home, domestic violence has been apparent in the home, drug or alcohol abuse has been apparent in the home or you simply have a work schedule that takes you far away from the children regularly then a sole managing conservatorship is not exactly the most reasonable outcome to expect in your divorce case.
It is much more likely that I’ve joint managing conservatorship would result from any settlement negotiation or trial that you become involved in. This should give you some degree of confidence that you can push for more about your child custody or divorce case. At least I hope it does. Taking whatever you can get in a divorce and consider yourself lucky to get it is not the best way to approach your case.
Many times fathers learned this lesson too late and have to bank on a future modification of their divorce decree to get what you think is appropriate or fair. My advice would be to not leave anything to chance and instead plan on being fair but aggressive in negotiation with your wife in a divorce or child custody case over the custody of your child.
What about the designation of a primary conservator?
Earlier in today’s blog post, I used the term primary custody about talking about you’re being able to spend time with your kids after a divorce. It may surprise you to find out that the word custody does not appear in the Texas family code even once. Rather, custody is a term that is a substitute for the more accurate term of a conservator. A Conservatory is just a person who has legal rights and duties regarding decision-making and caretaking for another person. An adult can be a conservator over another adult or a child.
In a joint managing conservator situation, you can expect they have nearly equal rights and duties about your child when compared to your wife even if she ends up being able to spend more time with them throughout the year. Ex-spouses typically hold these rights and duties in tandem with one another and you will find that both of you have to work with the other to coordinate decision-making regarding important subjects like the education and health of your child. In some regards, you will be able to make decisions without consulting with your Co-parent, especially in emergency circumstances, but overall you will be charged with being able to make decisions in tandem with your co-parent.
Two heads are better than one, at least thanks to the Texas legislature. While the reality of her situation may be difficult in terms of being able to make decisions with the person that you may not see eye to eye with on much but If you can put aside your differences but this person instead focuses on what is in the best interest of your child then you will be a step ahead of the game. This is the conversation for a different day, however, so let’s focus on How being a primary conservator of your children differs from being another type of conservator.
In a joint managing conservatorship, there are two roles that you can fill. The first role is that of the possessory conservator. This means that you have the right to possess your children on a set schedule that is contained in your final decree of divorce or child custody orders. Not only that, but you also have the right in duty to make decisions on behalf of your child in terms of their daily life in the long term future.
The other role that you could fill within a joint managing conservatorship is that of primary Conservatory. A primary Conservatory holds rights and duties about children as well as the ability to spend time with the children just as the possessory conservator does. However, the major difference between a possessory conservator and a primary conservator is that a primary conservator also can designate the primary residence of the children as well as receive child support from the possessory Conservatory.
When you talk about different roles and where debate stems from within the context of a divorce or child custody case these two rights represent a big part of the discussion. The ability to decide that your children live with you during the school year and the ability to receive child support are two relatively big parts of a divorce or child custody case. If you or a father wants to have equity with your ex-spouse in terms of your relationship and role in the life of your children then this is a good place to start that discussion.
Where does split custody come into play in this discussion?
I think fathers understand that they more frequently are named in a divorce or child custody case as the parent you will end up paying child support as a result of the case. Based on this, I think split custody is seen as a way to escape the likelihood of paying child support. In some ways this is true. It would be more likely that child support would be waived by a primary conservator given the splitting time. Additionally, it may even be the case that there is no primary Conservatory named in a situation where you and your wife end up splitting time with the kids and splitting rights and duties down the middle.
In general, however, I just feel like split custody for fathers is sort of the Holy Grail because while they assume that they cannot do better than this. You may be getting bad advice from people that we’re led to believe that fathers are not able to win primary custody of the children. Many times well-meaning but misinformed people can pass along that misinformation and as a result can end up hurting you more than they are helping you. Nothing is stopping a father from being named the primary conservator of the kids.
Of course, you need to look to your life and your circumstances to determine whether or not it is a realistic possibility for you to be awarded primary conservatorship. Mothers will more often than not be named as primary conservator based on their history of being the parent who is active and involved in the life of the child. If you work outside the home, keep irregular hours because of your occupation more generally speaking have not been as hands-on as your wife when it comes to raising the kids then she may have a leg up over you when it comes to this subject.
Again, none of this makes you a bad dad or necessarily eliminates your ability to be named as a primary conservator in a divorce or child custody case. But what it does is it gives your wife or child’s mother an advantage from the beginning as far as the facts and circumstances of your case are concerned. When you add on to that The mindset of many fathers being a tad on the defeatist side from the beginning of a case you have a recipe for taking what you can get and feeling lucky that you were able to spend any time with your kids after the divorce.
As a father of three little kids and as an attorney, I want to encourage fathers to always take an involved role in the life of their children. I don’t mean this from the standpoint of being able to position yourself well in a future family law Case. Your children benefit from you being in their life and your children receive specific benefits from their father that a mother cannot always provide as well. Having this mindset throughout your parenting life will assist you if and when you find yourself in a family law case.
Otherwise, I hope that you have learned and developed an appreciation for some of the more subtle yet widely discussed topics about child custody and divorce cases with children. So much of a family law case depends on your specific facts and circumstances of your life. For that reason, I recommend that you meet with and scheduled consultations with as many family law attorneys as you can to find a lawyer who can present to you a clear and concise overview of your life and circumstances and a plan for attacking a divorce or child custody case with some intentionality.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material contained in today’s blog post please do not hesitate to contact The Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week via phone, in-person meeting, and video meetings. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances could be impacted by the filing of a divorce or child custody case.