Child Custody In Special Circumstances FAQs:
One of the reasons that people divorce is infidelity. Should the spouse that’s been cheated on be concerned that moving out of the house will affect their chances of getting custody of the children? Or does it not affect their chances of having custody or joint custody of the children?
Infidelity is certainly one of the factors that the court can consider. With most experienced family law judges, in a situation where adultery has been alleged, either as a grounds for the divorce or as a reason why they believe one parent should have primary custody of the children, the courts are going to want to know if the affair occurred while the two parties were still living in the same household or if it occurred post-separation. The courts look at the character of the boyfriend or girlfriend, whichever side it’s on; the courts are going to want to know whether the girlfriend or boyfriend been exposed to the children, and what role have they play in the kids’ lives, if any. So, even within that one issue of adultery, there are many things the court’s going to consider. If you have two parties living in the same household and one has had an affair and the other one’s trying to determine whether to move out of the house, I’m not sure I would want my client moving out of the house and leaving the children the with the other parent—I wouldn’t want to set that precedent.
We would probably want to get a divorce on file, schedule a temporary hearing as soon as possible, and try to get into court within a couple of weeks to see if we can have the other spouse removed from the home so that my client could stay in the home with the children. You’ve got to still look at the history of who’s been the primary caretaker of these children.
So, when you have a client that wants primary custody because their spouse has had an affair, you have to open their eyes up to all the other issues that are involved and find out what their involvement has been in their children’s lives without getting too focused on that one issue.
I don’t think so. Each judge comes to the bench with his or her own life experience and historical biases. Twenty years ago, even though it wasn’t written in the code, there was the presumption that a mother was going to get primary custody of children and it was hard for dads to overcome this historical bias. I think that is changing. I know that we have had success in obtaining primary custody for dads for years in this area. Most of our courts are very open-minded to appointing dads as the primary custodial parent of children, and even young children.
This is a result of changes in society and the roles of parents within the family. More women are becoming professionals and more men are assuming the caretaker role within the family unit. Recently, I looked at some research that the Peer Research Centre did on single-parent households and, based on the latest census numbers that they have, the increase in single-father households, fathers who had primary custody had risen from 14% back in the 1960’s to almost 24% in 2011.
So, if you’re trying to get to a point where fathers have custody approximately 50% of the time, I think you can see that men have made great strides in that area. I don’t think we’re there yet, but as we allow new generations of judges—I mean, we have male judges in our county who are in their 30’s and 40’s who are very active in their children’s lives. We have a lot of female judges here who are career-oriented and they know that their husbands have played a major role in bringing their children up, and I think more and more they’re open-minded to it.
The people on the bench here are following the lead of society. I think the law may be lagging in terms of what society thinks about the role of the father and the mother within the family unit, but I think it’s headed in the right direction for fathers; you just can’t be afraid to go to a court and ask for it. There are a lot of people who come through our doors who think, as a dad, there’s no way I can get custody unless my wife is abusing the children. That’s just not true.
Is there anything that fathers seeking primary custody of their children can do, aside from simply asking?
If you want primary custody of your kids, you have to be an involved parent. You have to participate in your children’s lives as opposed to just provide for them or warehouse them. You need to engage with your children, you need to go to their extracurricular activities, and you need to be involved with their schooling. You need to be involved in the discussions with their teachers and school administrators; you need to be involved with their physicians or their dentists.
If you want to have primary custody of your children, you need to be able to show the court that you been involved in their lives even before the divorce situation started, and show that you’re doing it for all the right reasons. You’re not coming to court having a history of not being involved in your child’s life. Then the court questions, why all of a sudden do you want to get involved now? Are you doing it because you want to reduce your child support? You just want to get back at your spouse because you’re angry at them?
As an attorney, when you go to tell your client’s story in front of a court, you want to be able to show that you’ve had a parent who’s been involved, not only physically being there but involved in participating in their children’s lives.
What happens regarding child custody and child support in the case of an unwed couple who has children?
In Texas, as long as the identification of the mother and the father has been determined, the Family Code treats those two the same as if they were married, whether they were married or not. The marital status doesn’t provide any more benefit, so if we have a paternity case and we determine who the father of the child is, then the same presumptions, the same conservatorship models, the same support provisions, the same possession and access presumptions, apply to those parents also, whether they had been married or not. The overriding standard by which decisions will be made by the court will be in the best interests of the children. So, once we jump the paternity hurdle, then we’re essentially in the same type of case just as though we were in a divorce case.