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.

Yesterday I was asked if someone voluntarily terminates their parental rights, then does that automatically end their child support obligation.  Typically, the answer is yes, but the court can, in special circumstances, order the child support obligation to continue post termination.  A court can order financially able individuals to pay child support for a child in substitute care (CPS custody) if CPS has been appointed the managing conservator of the child.  In this instance, support can be ordered until the earliest of (1) the child’s adoption, or (2) the child’s 18th birthday or graduation from high school.

Voluntarily terminating your parental rights is an extremely serious decision with major consequences and shouldn’t be considered because someone wants to evade their child support obligations.  In this economy, Dallas divorce lawyers (as well as lawyers from all across the state) have seen an increase in suits to modify prior child support orders.  Anyone considering terminating their parental rights because of their child support obligation should first consider whether or not they are entitled to modify their child support.

A lot of times clients come into our Dallas divorce law office looking for “revenge” during their divorce proceeding.  While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.

In our experience, opposing counsel generally falls into one of three categories.  The first type is the attorney who is passive and avoids confrontation at all costs.  Obviously, this isn’t the type of attorney you want handling your case.  Second is the attorney who is the complete opposite of the first type.  Attorneys falling into this category argue for the sake of arguing and take the “tough”  approach that some equate with successful advocacy.  Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division).  The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive.  Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.

A prime example of the effects of an attorney being overly aggressive recently occurred in an elderly abuse case in California.  In that case, the trial court expressly noted that the attorney’s conduct in examining a witness was the final straw in ruling in favor of the opposing party.

Bottom line, the attorney’s overly-aggressive approach ended up costing his client the case, and in all likelihood increased the amount of costs and fees for both parties.  At our Dallas divorce law firm, we take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.

Dallas Divorce Lawyer Michelle May O’Neil received national recognition from the National Law Journal where they profiled Ms. O’Neil as an Appellate Leader.  To see a copy of the profile that appeared in the magazine, click on:  National Law Journal Profiles Appellate Leader Michelle May O’Neil.  The National Law Journal regularly features Leadership Profiles to assist its readers in choosing outside counsel and referrals. Profiles focus on various specialties and other areas featuring attorneys who represent companies as well as individuals.

January is the top month for divorce according to a Scripps Howard News Service report.  Dallas and Collin county divorce lawyer Michelle May O’Neil reports the same trend locally that lawyers report nationally. Potential reasons behind the beginning-of-the-year rise in the number of divorces vary from a desire to maintain the family stability through the holidays to a desire among some couples to start fresh in the new year. While some may consider divorce a chance at a new beginning, the report notes that significant feelings of loss are common among divorcing couples and their children.  Trying to find the right time for the hefty decision is a difficult challenge and there may never be a perfect moment.

Corpus Christi Caller Times, January is Top Month For Divorce

For a FREE Divorce Guide offered to you by the Dallas divorce attorneys at The May Firm, click here.

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Dallas Family Lawyer Michelle May O’Neil recently spoke at the State Bar of Texas Marriage Dissolution seminar, held in Galveston, Texas on the topic “We Lost, Now What?”  The presentation, to approximately 250 Texas lawyers, addresses presenting a family law case on appeal to the court of appeals.

To see the article, click here: We Lost, Now What? CLE article