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.

Dallas Divorce Lawyers note a similar trend to that in a recent Newsweek article.  Newsweek point to a trend nationally where divorcing couples are sharing equal time with their children as well as joint decision making.  The “standard” orders in a Dallas divorce involves parents making shared decisions regarding their children (such as what school they will attend or when to get braces) but the children live primarily with one parent and spend time with the other parent according to the Texas Standard Possession Schedule (current version 2008).  Increasingly, divorcing parents who are able to get along and co-parent their children are turning to a more equal possession schedule, such as a week-on/week-off type arrangement.  These arrangements work well as long as parents live close together, preferably in the same school district, and get along well enough to collaborate on homework, activities, and such things.  Parents who argue or cannot communicate do not do well with this type of arrangement.

Apparently Alec Baldwin has a book coming out this week that talks about his experience with the divorce process.  I read an excerpt of the book online — the introduction and part of the first chapter.  What I read seemed to be his “rant” on perceived corruption in the judicial system in California.  He calls the judges inept and the lawyers lazy.  I plan to get the book and read the rest of it just to see what he has to say.  I don’t know the lawyers or the judge involved with his case. No doubt he had a bad experience with his divorce — we all remember the ultra-inappropriate voice mail left for his daughter. No doubt the judge in his case disapproved.  I am curious to see how much of the book shows a viewpoint skewed by his bitterness and anger as opposed to a bias in the system that is more far-reaching.  I was struck immediately by a story he tells in chapter 1 about controversies with movie producers where he concludes that the producers are more corrupt than the illegal drug business.  I question his credibility in criticizing the legal system when he also calls the movie producers corrput.  Sounds like he’s saying, anything I disagree with is therefore corrupt.  Overall, his book seems like an honest, maybe even raw,  account of an embittered divorce — not so dissimilar to the experiences of many people.  He also disucsses his opinions on “parental alienation”, which he calls a syndrome, although I’ve never known of it to be a diagnosable condition. He does seem to shed light on the inequities and prejudices that continue to persevere in our country over women versus men in raising children.  Starting a discussion of those inequities in a valuable result of his book, I just hope that the good that can come from a celebrity bringing a private situation in the public eye isn’t overshadowed by his bitterness and anger. 

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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.