Couples who are facing divorce are under a lot of stress and have plenty to worry about, and one primary concern relates to their child custody arrangements. When it comes to child custody, divorcing parents tend to get pretty worked up, and there are plenty of good reasons for doing so. Your parental rights are obviously of paramount concern, which makes better understanding these rights a good place to start. One of the most important issues to tackle when it comes to child custody involves dispelling the three most common misconceptions out there. Read on to learn more.
Child Custody in Texas
A good place to start when it comes to these three primary misconceptions is with the basics as they relate to child custody in the State of Texas. To begin, Texas uses the term conservatorship instead of child custody, but this does not alter the fact that most people continue to address the matter as child custody. In Texas, child custody is separated into both legal and physical custody.
Legal Custody
Legal custody determines who has the legal right to make important decisions on behalf of their children post-divorce. This can play out in one of three ways that include:
One of you can take on this parental responsibility (sole legal custody).
You and your ex can share this parental responsibility (joint legal custody). While one of you may be awarded tie-breaking authority, this does not mean that you are not required to attempt – in good faith – to come to a consensus on the matter at hand.
One of you can take on the decisions that need to be made in specific categories, while the other takes on the decisions that need to be made in the other categories (another form of joint legal custody).
The kinds of important decisions that legal custody concerns itself with include the following:
Decisions about your children’s schooling
Decisions about your children’s health care
Decisions about your children’s extracurriculars
Decisions about your children’s religious upbringing
Physical Custody
Physical custody is likely what you think of when you consider the matter of child custody, and it refers to how you and your ex will divide your time with your children. While the State of Texas has standard visitation orders that it routinely hands down, you and your divorcing spouse have the flexibility to arrange whatever kind of visitation schedule that works for both of you and your children if you are able to find common ground on the matter. Ultimately, all child custody arrangements fall into one of the following two classifications:
You and your ex share your time with your children equally (or very nearly equally).
One of you takes on the role of the primary custodial parent (with whom your children live the majority of the time), while the other has a visitation schedule.
Related Reading: Child Custody in Texas: The Basics
Misconception 1: The Mother Is Always Granted Primary Physical Custody
Often, many divorcing couples believe that Texas courts are biased toward the mother when it comes to granting physical custody and that mothers have a leg up when it comes to becoming the primary custodial parent, but this is simply not the case. In Texas, the court bases every decision related to children on the best interests of those children, and as such, there are several reasons why mothers may appear to have an unfair advantage.
Mothers Traditionally Stayed Home
In the past, far more mothers stayed home with their children, and courts generally awarded mothers the role of primary custodial parent as a matter of course. As the law has evolved, however, this blanket approach no longer applies, but because women remain more likely to spend more time with their children (although this discrepancy is less pronounced than it once was), they remain more likely to be named their primary custodial parent.
The Status Quo
As mentioned, the courts make decisions about children’s custody based on their best interests, and one factor that is universally accepted as bolstering the well-being of children is maintaining the status quo to the degree possible during times of chaotic upheaval. Because mothers are more likely to spend more time with the children and to remain in the family home with the children while the divorce is pending, the courts are more inclined to assign them primary physical custody (thus maintaining the status quo).
All Things Being Equal
All things being equal, the court is not partial to one parent over the other, and judges are not averse to splitting child custody straight down the middle. Further, if it is in the children’s best interests for their father to become the primary custodial parent, this is how the court will rule.
Child Custody: The Factors Considered
When it comes to determining child custody in a divorce case or in a child custody dispute outside of marriage and divorce, the court takes a wide range of factors into consideration, including:
The children’s physical and emotional needs (now and into the future)
The children’s preferences (if they are old enough and mature enough to weigh in)
Each parent’s involvement with the children and the ability of each to understand and address the children’s ongoing developmental needs
If any of the children have special needs that one parent is better prepared to address than the other
The age and physical and mental health of each parent
The stability of the home that each parent provides
If emotional or physical abuse plays a role in the custody matter
The court has the discretion to take any factor it deems relevant into its decisions regarding child custody.
Related Reading: The Factors that Are Most Likely to Affect Your Child Custody Case
Misconception 2: The Child Can Ultimately Decide
Many parents believe that once their children reach some golden age that they can simply tell the court which parent they want to live with, and that will be the end of that. This, however, could not be further from the truth – unless the golden age is 18. Once a child reaches the age of 18, he or she is free to make his or her own decisions about which parent to live with (or whether or not to live with either parent), but until that day, the court is highly unlikely to base its custody decisions on the child’s preferences alone (unless they happen to align with the court’s conclusions on the matter).
The point to be made here is that if children were mature enough to make the best decisions for themselves, custody would not be an issue in the first place. The premise behind child custody is that children need to be taken care of, provided for, housed, clothed, fed – all in addition to having parents who have their best interests at heart and who make critical decisions on their behalf. While the court will take a child’s preference into consideration, it is up to the sole discretion of the judge how to weigh the child’s contributions. When it comes to your child’s custody preferences, the following apply:
If a parent requests that the judge interview a child who is at least 12 years old, the private meeting in the judge’s chambers is mandatory.
If a parent requests that the judge interview a child who is not yet 12 years old, it is up to the judge whether or not the interview happens.
The child’s parents are not present at the interview, and neither are their divorce attorneys.
The judge can use the private interview to discuss the child’s preferences regarding primary custody, visitation, and any other concerns involved in the custody case at hand.
Upon request by either party, a record of the interview (usually a court reporter’s transcription) can be required.
While divorce is hard on the adults involved, it is often even more so for the children of those adults. And it is nearly universally considered ill-advised to turn to these children to make critical decisions regarding their own custody – without also having considerable checks and balances in place.
Related Reading: Key Characteristics in Child Custody Cases
Misconception 3: The Primary Custodial Parent Sets the Rules for Engagement
Many people erroneously believe that the parent who most often has custody of the children sets all the rules and makes all the major decisions as a matter of course. Again, this is simply not how it works. This is where those important decisions that make up legal custody come up. Often, parents share legal custody, which means that they are required to make major decisions about their children’s lives together. And even if one of you is granted the power to break a tie in one of these matters, this does not diminish that parent’s responsibility to carefully attempt to negotiate decisions that work for both of you. Parenting is fraught with big-picture decisions that must be made along the way, and if you share legal custody, which is not uncommon, it is critical that you find a way to make these important decisions by consensus.
Don’t Sweat the Small Stuff
As parents, we have to make mundane decisions for our children on what seems like a moment-by-moment basis. In other words, there are a lot of decisions that need to be made on any given day (or hour), and these fall to the parent who is responsible for the children at that time. For example, if it comes down to whether or not the kids are eating pizza or McNuggets for lunch, go ahead, knock yourself out. However, when it comes to enrolling your children in school, who makes the decisions involved will hinge upon how your legal custody is assigned.
In an Emergency
It is important to note that, in an emergency, decision-making also falls to the parent who is at hand. Even if you share legal custody – if there is a decision that needs to be made in an emergency – it is the responsibility of the parent on duty at the time to take action and to inform the other parent as soon as it is possible to do so.
A Note about COVID-19
The global pandemic has made making decisions about matters like school, extracurriculars, healthcare, and religious education more fraught with concern than ever before. While many parents have traditionally had preferences – even very strong preferences – on these matters, things generally did not reach the level of affecting the overall health of our families (and even our extended families). COVID-19 has made these kinds of decisions that much more important and that much more up close and personal, which can further complicate the issue of legal custody.
Dividing the Kinds of Decisions Being Made
When parents think about legal custody, they often see it in terms of black and white. Either one parent takes on the responsibility, or you hash out every major decision between yourselves. Another approach is dividing legal custody according to the kinds of decisions being made, which can be very useful in some situations. For example, if your spouse is a medical professional whom you trust implicitly to make healthcare decisions for your children and you are a teacher whom your ex knows has a better understanding of your kids’ educational needs, this might be an easy division. Further, if one of you is gung-ho about extracurriculars but is not invested in religion, this may work as another natural divide. In the end, if you and your divorcing spouse are able to hammer out a division that works for you, you can find your own unique response to the issue of legal custody.
An Experienced Killeen Divorce Attorney Is on Your Side
Divorce is a stressful life event, and one of the most emotionally fraught aspects of divorce is child custody. Brett Pritchard at the Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – recognizes the difficulties you face and dedicates his impressive practice to helping clients like you resolve their custody concerns favorably. We are here for you, so please do not hesitate to contact us online or call us at (254) 781-4222 today.