Father’s Rights in Texas

Walters Gilbreath, PLLC

When I first started practicing family law in the mid-1990s, the concept of Father’s Rights was in its infant stages. Since then it has become much more widespread. The issue of father’s rights is still largely misunderstood contrary to popular belief, Texas family law is quite helpful to fathers. It is clear that there is to be no preference given to mom or dad in a custody battle, in possession of a child, or in child support based solely off of the parental role as mother or father. Even though Texas law aims to ensure that father’s rights are protected, the reality is that the vast majority of cases still end up with the mother getting primary custody, and the father paying child support and seeing his child less often.

There are several reasons for this seeming contradiction:

  • Most families still organize themselves so that the mother is the primary caretaker. Courts like to keep the status quo in place, so the mom ends up being the primary parent after a custody battle or divorce.
  • Most fathers who could win custody don’t push their case in Court. The most common reason is that they don’t want to spend the money or lack the necessary confidence to win.
  • Some fathers who could win custody fail to hire a good enough attorney. These are your children. Just as you would not choose any brain surgeon to perform surgery on you, you should hire an experienced attorney to handle your case.
  • There is still some tendency in Courts and Juries to believe that the mother is a primary caretaker when the evidence is close on this issue. This tendency is stronger in relatively conservative areas and is more common on a Jury than in front of a Judge.

A father seeking primary custody of the child should take the following steps:

  • Immediately hire an experienced custody (Family) attorney;
  • From Day 1 seek primary custody (don’t accept the strategy of “we’ll come back to that later”);
  • Try to keep the issues in front of a Judge, rather than a Jury; and
  • Make sure that your case is as strong as possible; don’t get overconfident.

The most common scenarios for a father to have primary custody are when he is the primary caretaker at home (or at least 50/50) and when the mother has a problem (such as substance abusefamily violence, mental disorder, etc.). The other most common way Fathers get awarded primary custody is simply because the father wants it more, as evidenced by his willingness to find and fund the best lawyer possible, and relentlessly stay after that goal.

A father should almost never accept anything less than Joint Managing Conservatorship and the full Expanded Standard Possession Order.

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