Dallas Divorce Law Blog by Michelle O'Neil

I am often asked whether court’s still presume that custody of a child should go to the mother as opposed to the father. The short answer is no. Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody. Generally the best interests of the child are the primary considerations the court assesses in determining custody issues. The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.

Historically, gender played a role in assessing parental fitness. This role led to the development of the “tender years doctrine” which in essence stated a child should not be separated from his or her mother. Early records of the tender years doctrine date back to the mid 1800′s and needless to say there have been dramatic shifts in socio-political viewpoints since that time. The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code. According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally. In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children.

Despite the shift away from the mommy presumption, there are some judges who retain an “old school” mentality and still believe that the child should remain with his or her mother. This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge’s court, then your attorney will have to clear the mommy presumption hurdle.

Continuing with the myths of divorce post from Rutgers University’s National Marriage Project:

8.  Myth:  “Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.”  Marriages of children of divorce actually have a much higher rate of divorce than the marriages of children from intact families.  A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents.  In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

9.  Myth:  “Following divorce, the children involved are better off in stepfamilies than in single-parent families.”  The evidence suggests that stepfamilies are no improvement over single-parent families, even through typically income levels are higher and there is a father figure in the home.  Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.

10.  Myth:  “Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.”  All marriages have their ups and downs.  Recent research using a large national sample foudn that eighty-six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier.  Indeed, three-fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy”.

Extra Myth:  “It is usually men who initiate divorce proceedings.”  Two-thirds of all divorces are initiated by women.  Reasons for this vary and are somewhat speculative.  Women tend to receive custody by agreement in many cases, so they have more reason to file the divorce.  Also, husbands are more likely than wives to have problems with drinking, drug abuse, and infidelity, creating the impetus for the wife to initiate the divorce.

More about the myths of divorce from Rutgers University’s National Marriage Project:

4.  Myth:  “Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly.”  Divorce increases the risk of interpersonal problems in children.  There is evidence, both from small qualitative studies and from large-scale empirical studies, that many of these problems are long-lasting and may even become worse in adulthood.

5.  Myth:  “Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.”  Many studies have shown that the most stressful time in a marriage is after the first child is born.  Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together for the sake of the children.

6.  Myth:  “Following divorce, the woman’s standard of living plummets by seventy-three percent while that of the man’s improves by forty-two percent.”  This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation.  A reanalysis of the data determined that the woman’s loss was twenty-seven percent, while the man’s gain was ten percent.  Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.

7.  Myth:  “When parents don’t get along, children are better off if their parents divorce than if they stay together.”  A recent large-scale, long-term study suggests othewise.  While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce.  In examining the negative impacts on chidlren more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring.  In lower-conflict marriages that end in divorce — and the study found that perhaps as many as two-thirds of the divorces were of this type — the situation of the children was made much worse following a divorce.  Based on the fidnings of this study, therefore, except in the minority of high-conflict marriages, it is better for the children if their parents stay together and work out their problems than if they divorce.

A recent national survey of divorce lawyers notes an increase in the number of mothers paying child support.  According to the survey, 55% of attorneys said they have noticed a shift during the past five years in which more mothers are required to pay child support. 

This mimicks the trend that Dallas divorce lawyers are also seeing locally.  Many years ago, the Texas Family Code eliminated the gender bias from the language of the law, equalizing the rights of mothers and fathers.  Over the years since, the Texas Legislature has continued to support an increase in fathers rights overall.  We could have a spirited discussion on why this is… is it because many of the Legislators are fathers that have been involved in custody situations?  or is it because many of the Legislators are male?  Regardless, there has been a definite trend toward equalizing male and female roles related to children of divorce.  This, likewise, means that when a mother is not the primary parent, she will be required to pay child support.  In years past, when a mother did not have custody of the children, most often she was not made to pay support, presuming that the father made sufficient income to support the children financially without assistance from the mother.  But, some women more than or equal to their husbands (baby’s father) and therefore are required under the law to take equal or greater financial responsibility for the children.

Texas has standardized guidelines for the payment of child support based on the income of the paying parent… For example, 20% of the net income of the parent if there’s one child, 25% for two children, etc.  The formula becomes more complex if there are children from multiple relationships, where the parent paying the child support is given a credit for support paid to the children from the other relationship.

Regardless, there has been a trend recently in Dallas area divorces where mothers are being required to pay child support.  This isn’t necessarily because of some inherent unfairness in the legal system, but more because of a trend toward equalizing treatment of each parent regardless of gender.

The Wall Street Journal reports that more men are receiving alimony, up to 3.6% over the 5-year period ending in 2006, compared to 2.4% in the previous 5-year period.  Even in the Dallas, Texas area divorces, more men are sacrificing their career opportunities in favor of their wife’s.   Wives make more money than husbands in 33% of all marriages (including those where the husband may  not work.)

Alimony is the money that a higher-earning spouse gives to a lower-earning spouse following the end of the marriage.  Texas has a very limited court-ordered alimony statute, only providing alimony (aka maintenance in Texas) where the parties have been married for 10 or more years, plus the spouses lack property in the divorce to provide for the other spouse’sreasonalbe needs, plus either the spouse lacks the ability to earn wages to meet minimum needs or the spouse or a child have a disability that makes working outside the home difficult.  However, alimony can be provided for by agreement even when the situation lies outsides of the exact parameters of the legal statute.

Men are receiving alimony today for the classic reasons that women traditionally did.  A common argument is that they sacrificed their careers for the sake of their wives or children.

Some spouses find it distasteful to write a check each month to their former spouse.  So, the increasingly common practice is to trade alimony for a fatter slice of the marrital property pie.

I read an article recently in Parade magazine.  The piece questioned whether divorce courts are against dads — “In 85% of divorces, fathers get just two weekends a month and a couple of hours during the week.”  The article cites to a new national trend for “proportional time” where the custody decision is based on the time the father spent with the children prior to the divorce.  Read the article here.

Texas courts began changing the way parents are viewed in the mid-1990’s.  The father’s rights movement began to raise awareness of the involvement of some fathers in their children’s lives beyond the traditionally perceived gender rolls.  The Texas Legislature changed the designation of titles given upon divorce, creating a presumption that both parents will be called “joint managing conservators”.  Although Texas still has the presumptive Standard Possession Order that awards the non-primary joint managing conservator access two weekends a month, plus holidays and summer time, many judges have begun to entertain deviation from that standard schedule where the evidence shows a father’s involvement and ability to share in the day-to-day parenting.  For more information, please see my article Texas Divorce Law Basics.