Brian K. Tackett

There are numerous attorneys, law firms, and organizations that hold themselves out as advocates for father’s rights.  But what are the father’s rights in a child custody case?

Father’s Rights — Rights Regardless of Gender

By the letter of the law, fathers have equal rights as it pertains to care, custody, and possession of their children. A court may not discriminate against fathers on the basis of gender. The Texas Family Code specifically states that a court cannot consider the gender of either parent in making a custody decision. Tex. Fam. Code §153.003.

The problem is, many people, including judges, have a bias toward mothers being better parents.  It may be an antiquated perception, but the perception remains.

For eons, mothers have been the primary caretaker for the children. It was not long ago that the husbands were expected to be the providers and wives were expected to be the caregivers.  Most husbands worked, while most wives stayed at home.

Those roles have changed over the last few decades. Today, the nuclear family usually consists of two parents who work full time and share parenting duties.

Showing That You Are an Involved Parent

But when all else is equal, some judges (but not all) will still side with the mom. To overcome the bias toward mothers, it is imperative to show the judge that you are the better parent. This process begins before you ever file. If you are an uninvolved dad, and your wife is a good parent, it is highly unlikely that you will convince the judge that you are the better parent. To show you are the better parent, you have to be the better parent.

The Texas Supreme Court in Holley v. Adams provided a non-exhaustive list of the factors that a Court may consider in determining who should be the primary caretaker of the children:

  • the desires of the child;
  • the emotional and physical needs of the child now and in the future;
  • the emotional and physical danger to the child now and in the future;
  • the parental abilities of the individuals seeking custody;
  • the programs available to assist these individuals to promote the best interest of the child;
  • the plans for the child by these individuals or by the agency seeking custody;
  • the stability of the home or proposed placement;
  • the acts or omissions of the parent that may indicate that the existing parent-child
    relationship is not a proper one; and
  • any excuse for the acts or omissions of the parent.

There are numerous other factors the judge may consider. But is comes down to these two questions: 1.) What are the specific reasons you are the better parent? and 2.) What are the specific reasons the mother is not the better parent?

Being present for your children is a start, however you need to be engaged as a parent. You need to be able to articulate how you are engaged as a parent. And you need to be able to show it.

Father’s Rights — Problems with the Standard Possession Order

In the State of Texas, there is a standard possession order (SPO). The SPO gives one parent the right to determine where the children live. That parent is often referred to as the “primary parent.”

The other parent is given a possession schedule consisting of the first, third, and fifth weekends of the month and every Thursday during the school year. There are also provisions for holidays, spring break, and extended summer possession.

It is important to note that the standard possession order is presumed to be in the best interest of the children. Therefore, the vast majority of Texas judges usually order standard possession.

The problem with the standard possession order is that you have a winner and a loser. One parent will be the primary parent. The other parent will have standard possession.  If you have two involved, caring parents, one of them will be the loser in this battle. But this leads to a much bigger problem – an all-out battle in court. There is no middle ground.

A custody battle is almost never in the best interest of a child. The system is set up such that it is not enough for a party to show that he/she is a good parent. There is incentive to show that the other parent is a bad parent. This type of mudslinging leads to further conflict, mistrust, and out-right hatred for the other parent that continues long after the litigation is over.

And the kids almost always get drawn into the conflict.

Father’s Rights — The Trend Toward Equal Parenting Time

In 2015, a bill was introduced that would make a 50/50 possession schedule the new standard.  The bill ultimately died in the house.

The bill has been reintroduced in the 2017 legislative session as HB 453. Again, the bill includes many of the same flaws in the prior version. I don’t expect the bill to pass in this session. But it does show that there is a slow trend toward more equal parenting time.

In fact, there are judges in Texas who openly state that they believe a 50/50 possession schedule to be in the best interest of children.

It may be quite some time before 50/50 possession is the norm. Until then, all you can do is be a loving, active, and engaged parent.

If you would like more information on father’s rights or child custody, please contact us here or call us at 940-387-3518.