CHILD CUSTODY IN THE TEXAS DIVORCE


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Of all of the many issues in a divorce, child custody is the one which is most likely to leave bruised feelings.  When a man and a woman have been rearing children together for years and they've both been good parents, it's difficult to accept losing daily contact with the children.  Yet, by the nature of a divorce, the spouses are separating and children can't live in two places at once.

For many years, there was absolutely no question which parent the kids would live with:  it was nearly always the mother.  There was a deeply embedded presumption that women were nurturing and men were not, therefore the children were better off with the mother.

To a certain extent, that presumption was based in reality.  On a simple biological level, infants obviously need breast feeding, and men aren't exactly equipped to handle that challenge.  On a traditional level, females in our society have been socialized to care for children and men have not been.  Many males know the feeling of helplessness when they're first confronted with the mysteries of how to put on a diaper.

There were cases, of course, where the man obtained custody of the children.  In some of them, the woman simply agreed to that arrangement.  Often these were women who had decided that they'd missed something in life, that they wanted a career and education, and that the children would be better off with the father.

There were other cases where the woman was found to be unfit as a parent.  Normally, this took a lot of proof.  There had to be serious allegations such as drug addiction or child abuse, and there had to be solid evidence to back up those allegations.  Barring that proof, the man almost always lost custody battles.

There was a study done in the late 1980s purporting to show that over 60% of the men who engaged in custody battles won.  It was, at best, a flawed study.  On the face of it, it looked as if men had an equal shot at child custody.  Unfortunately, it didn't explain that most men who were winning custody fights were very wealthy individuals.  They could afford to hire teams of lawyers, dozens of private eyes, and pet psychologists to testify for them.  They were winning with dream teams that normal people simply can't afford.  The average man who engaged in a custody battle still lost and, in the process, ended up with an ex-wife and in-laws who hated him.

Still, there was the gut feeling among many men that it just wasn't fair.  If they were good parents, had provided for their children and nurtured them, why shouldn't they be allowed to have custody, too?  As a result of an increasing clamor from mens' rights groups, the Texas Legislature began to look seriously at the issue of joint custody.  Today, the Texas Family Code actually states that it is in the best interest of the State of Texas for divorcing parents to have joint custody.

Have things gotten better?  On a superficial level, yes.  Men can now tell their children that they have joint custody.  There's no longer the stigma of the children wondering why their fathers didn't fight to keep them.  At least on paper.

Actually, very little has changed.  There is still the reality that a divorce involves the two parents living separately.  If we all lived in Smalltown, America, there could actually be a real joint custody.  Little Johnny could go to the towns' only school and could go home to one parents' house one night and the other parents' house the next.  Rather than his life being disrupted, it might actually be enriched by having the experience of two loving families.

In the real world, divorced parents often live in different cities, and the children have to be able to attend one school on a regular, day by day basis.  They can't be turned into human ping-pong balls who are bouncing from one city to another every day.  And that means that they have to live with one parent the majority of the time, and the other parent has them for half of the weekends, half of the holidays, and half of the summer.

And, that's basically the same situation that existed before joint custody was adopted by the Texas Legislature.  Are more men getting custody?  There seems to be a slight increase, but it's doubtful that it's a result of any change in the laws.  It's far more likely that societal attitudes have shifted over the years.  It's more acceptable now for a woman to leave her children with a responsible father while she pursues an education or a career.  It's more acceptable now for men to be, "house husbands," and take on the responsibilities of rearing children.  Perhaps more importantly, more parents are realizing that they will go on being parents of their children, despite going through a divorce.  The welfare of the children becomes more important than the bitterness of the divorce.

There will always be an inherant problem with custody in a divorce:  it's the nature of the beast.  Hopefully, though, as we continue to modify the laws and stress parenting education, divorced parents will become more and more coequal in the lives of their children.


About the author:  Dan Adair is the author of, "The Texas Divorce Course, A Peoples' Guide to the Texas Divorce Process," and has written extensively on the experience of divorcing in Texas. He has 16 years experience in a law office in Central Texas that processed between 25 and 45 divorces a week.

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