One of the most prominent fears that men tend to have as they approach a child custody or divorce case is whether they could lose custody of their children. Losing custody can mean something different depending on who you are speaking to. For some, it could simply mean not being able to see your children as much as you may want to. For others, it can mean having your parental rights terminated and losing all contact with your kids. These are dramatically different situations. What is the truth? If you are a father, how can you prepare for your family law case?

Losing custody is a serious situation. Having your parental rights terminated means that your legal rights concerning your kids come to an end. Additionally, you will not be able to spend time with your children or legally be able to call them your children. An abrupt end to these relationships will occur. I don’t think there can be a larger or more prominent fear that a parent could share with their attorney than losing custody if that means having your parental rights terminated. 

On the other hand, losing custody could also mean that you simply lose time with your kids. Losing time with your kids is bad in and of itself but it is not the sky is falling type of bad that having your parental rights terminated presents you with. People lose time with their kids all the time in family law cases. You don’t want this to happen to you, but the reality is most people lose time with their kids who have to go through a family law case. 

Previously you were able to wake up and see your kids every morning before work and school. When you file for divorce or become part of a child custody case this probably will no longer be true. That does not mean that you have “lost” your case or have lost any chance of regaining that time with your kids in the future. All it means is that for the time being you will not have the time with your kids that you had previously. This reality may not sound fun, but it is not as bleak as you may have imagined. 

Do men have specific concerns that are valid when it comes to child custody?

Watching television or listening to the radio you may have met commercials for “men’s rights” or “father’s rights” attorneys. These ads will have a voice-over from a lawyer who is very convincing about his position: the legal system favors mothers and will stop at nothing to deny you of your inalienable right to spend time with your children and be a factor in the decision making surrounding your kids. Of course, that lawyer will offer you a chance to call him and to learn more about how he can solve your problems. 

Do you need to be concerned with these types of issues that face men in divorce and child custody cases? The reality is that you need to be aware of issues that impact you and your case. This is true whether you are a mother or a father. Whether or not you think particular subjects impact men more than women is something entirely up to you and your case. We can start by discussing whether the law favors women over men in matters related to child custody. 

The Texas Family Code does not explicitly favor women over men, mothers over fathers in matters related to child custody. Texas family court judges are to not consider the gender of the parent when making decisions regarding the best interests of children. I think that many fathers in your position imagine a legal system that explicitly favors mothers over fathers when that is not the case. Men have just as good of an opportunity as women, for example, to be named as primary conservators of their children. Hopefully, this gives you some hope as you embark upon your child custody or divorce case.

Where you may have some valid concerns over custody issues in your family case is regarding the factors that a court will look to when determining child custody. This is where several different relational and societal factors come into play that can give fathers some degree of pessimism when it comes to being named as primary conservators of children. Why don’t we look at what those factors are and how they could theoretically impact a father’s ability to be named as a primary conservator. 

Can a father have custody but not primary custody?

This is one of the finer distinctions that need to be made regarding child custody issues in Texas family law cases. Many fathers act as if they will lose custody of their children if they do not get primary custody of them. If you are going into your child custody or divorce case and have this opinion, I would recommend that you consider the reality of your situation. That reality begins and ends with decisions being made in the best interests of your children. It can be difficult to imagine but your best interests and the best interests of your co-parent. 

What matters most is which of you is best suited to care for the children on a full-time basis. That means getting the kids ready for school, feeding them, caring for them after school, doing homework, handling their temper tantrums (or eliminating them), and the list goes on and on. This is what it means to be a primary conservator. Sure, you get to spend more time with your kids. But on the other hand, you also get to spend more time with your kids! This is a lot of pressure and a situation where you need to be able to take responsibility for your actions and care for your kids as well as possible. 

Being a primary conservator is a tough business. Not every parent is cut out for the responsibility. That doesn’t mean that you couldn’t do it. That doesn’t mean that you couldn’t eventually grow into the role. However, a judge in a family law case doesn’t have the luxury of waiting for you to eventually learn to take on those responsibilities. This is a process but not one that you can learn in a month or two. If you have not been the primary caretaker for your children to that point in your life, then you should not expect the judge to name you as the primary conservator. 

I have seen many a parent attempt to pack a decade’s worth of parenting into two months before a temporary orders hearing. The parent will imagine that the judge won’t inquire as to which parent has fulfilled those responsibilities before the family law case. He or she will. It will be apparent that you either were a primary caretaker for your children or you were not. If you were not, then you should not expect to be named as the primary conservator in the family case. It’s just as simple as that. 

The judge is not saying that you aren’t a good parent or that you can’t eventually become the primary conservator of your kids. What he will be saying during your case is that at this time you are not the best person for the job. The best interests of the children lie elsewhere. Namely, your co-parent is better suited than you are to fulfill this responsibility for the kids. Your best bet is to take advantage of every opportunity presented to you in the family law case and then eventually determine when material and substantial change in circumstances has occurred in the life of your family and then work to modify your child custody orders. 

What does custody mean?

There are two parts to child custody that are extremely important. The first is physical custody. Physical custody refers to when a parent has physical possession of their child in the home. When you have physical possession of your child it is said that you have custody of him or her. Both you and your co-parent will have custody of your kids at various points after the conclusion of your child custody or divorce case. The real question that you need to ask yourself is whether you will be able to determine the primary residency of your child. 

This is the million-dollar question when it comes to child custody cases. Will you be able to determine the primary residence of your kids? When you win this right in a child custody or divorce case you are in the best position to be able to not only make decisions on behalf of your children but also to spend more time with them. By being able to determine their primary residence you are telling a judge that having the kids live with you in your home full time is in their best interests. 

When we talk about legal custody what we mean is when you as a parent have the ability under the law to make decisions for them in terms of their health, education, and general well-being. What kinds of doctors your child sees, vaccinations, educational matters, etc. These are all subjects that both you and your co-parent will likely be able to exert some decision-making capacity towards because of your child custody or divorce case. However, the primary conservator of your children will be in a much stronger position to be able to have the final say or perhaps the only say in these sorts of matters. For example, the right to determine the primary residence of your children is a right provided only to you or your co-parent. 

What rights will both you and your co-parent be able to share about your children?

Having legal custody of the kids is not likely to be something that will change a great deal because of a family case. You have always had legal custody of your children from the moment they were born. The only difference that a family law case will make is that a judge will sign their name to some orders that memorialize this right into black and white on a piece of paper. It becomes more formal, but it does not become any more real. You will find that your rights about your children can stay the same in many situations after a child custody or divorce case. Unless you are barred from making decisions for your child in various areas then you should be able to exert your capacity to make decisions for him or her in the following areas:

  1. Religious activities. If you and your co-parent disagreed on which religion or denomination to raise your child under while you were married, then you should not expect that disagreement or debate to go away any time soon. You will likely both have the right to have your child attend religious services while in possession of your child. Both you and your co-parent can send your child to religious services, educational activities, and the like while your child is with you. Importantly, you cannot bar your co-parent from being able to do the same thing with your child on their time. 
  2. School decisions. We have already talked about how the right to make educational decisions factors into conservatorship and custody discussions quite seamlessly. The decision to skip your child a grade, put him or her into special classes, homeschool your kids, or do anything else about their education. You could hold this right in tandem with your co-parent, independently from one another, or even hold the right to make these kinds of decisions exclusively. 
  3. Health decisions. Hopefully, this is not a major area of concern for you and your family. When children have prolonged or chronic health conditions it adds a great deal of stress to the family. You and your co-parent may have disagreed on various areas of your parenting lives. Making decisions for your child regarding their health is an incredibly impactful area of your life and theirs. Do not be caught off guard by this. Knowing how to care for your child, who his doctor is, and what medicines he or she is taking is important. 
  4. Extracurricular activities have become an increasingly important area of children’s lives in the past few decades. When we talk about these activities you and your co-parent will likely have to come together to sort through what activities are appropriate for your child and which may have to be put on the backburner. For example, if you have a budget of $500 to spend on extracurricular activities per year you and your co-parent will likely have to put your heads together to determine how that money should be spent. 
  5. Travel is an important topic especially in an area like ours where many people have either recently moved to southeast Texas and/or have family spread across the state, country, and globe. Travel means that you and your co-parent will need to come together on determining which trips are appropriate for your child to take and which are not. Many times, families agree in a divorce or child custody case to mandate that an itinerary must be presented to the other parent before a trip. Other times, international travel by one parent is not allowed due to bad actions previously. The other parent would oversee holding onto the passport. 
  6. Determining the primary residence of your child. This is a topic that we have already discussed in today’s blog post, but it bears mentioning again. Probably the most important right in the entire conservatorship discussion is being named as the parent who has the exclusive right to determine the primary residence of your children. This puts you in the best position to be able to spend more time with your children but also to receive child support payments. Finally, all the above rights are ones that the parent who determines where your child lives tend to be able to act upon more readily. 

If you have questions or think that there is a lot to keep in mind when it comes to conservatorship issues, then you are not alone. There are a lot of moving pieces in a family law case especially when it comes to issues like this. You need to be able to keep track of each subject and be prepared to make arguments that are suitable for your specific case. To do so effectively, I recommend reaching out to speak to an experienced family law attorney to move forward confidently. 

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 consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your child’s circumstances may be impacted by the filing of a divorce or child custody case.