April 1, 2013
Let´s face it, this is the most common question I am asked as a family law attorney. It is the one question every parent has or wants to know. The reason or motivation of the parents vary – and by that I am merely admitting there are times when one party wants to win custody so as to (1) not pay child support, (2) to make the other parent pay child support, or (3) to simply take custody from the other parent. These are NOT good reasons to fight a custody battle.
First, lets deal with the first two “alternative reasons” parents want to win custody . . . the money. Child support is not intended nor will it cover ALL of the expenses of raising a child. It is intended and designed to “help” cover the expenses. Think of it this way, if the parents are together, the child would presumably enjoy love and affection as well as mutual emotional and financial support from both parents. When the parties divorce, separate or otherwise do not live together the court issues child custody and support orders that are designed to keep as much of that “MUTUAL” support as possible. This is key in understanding how the legal system works in the realm of child custody and child support.
The Courts are not trying to replace a parent. The Courts goal and the intent of the law is to provide for the child the same, or substantially the same, benefits the child would enjoy if the parents lived together. With this in mind, perhaps it is easier to understand that the child support, albeit important, is the lowest priority of the Judge. There are charts, tables, and software specific programs to give us the child support numbers. The ultimate question is who (which parent) will be the primary custodian of the child/children and how much visitation will the other parent enjoy.
Texas Judges are governed in custody fights by Texas Family Code 153.002 which states: The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.
The real crux, and one even some attorneys have trouble explaining is the definition of “best interest”. Stated another way, what is in the best interest of the child? This is case in the law where the legislature set out a rule and gave no guidance or definition. Accordingly, best interest of the child is not really defined anywhere, it is up to the Judge in your case to decide what it means. That said, there is case law in Texas that guides the Judge hearing your custody dispute. While not every conceivable fact or circumstance is addressed, there are guiding principals that your, as a parent in a custody fight, should know exist. These are the issues or facts that the Judge MUST look at since these are facts that have been determined through case-law as factors to consider:
The willingness of each parent to support and facilitate the children’s ongoing relationship with the other parent.
Whether either parent has been providing the majority of the children’s care up to this point.
The ability of each parent to provide a stable, loving environment.
The health – both mental and physical – of each parent and the children.
The living accommodations of each parent’s home.
Each parent’s ability to provide for the children’s physical needs, emotional wellness, and medical care.
The level of adjustment and attachment between the children and their home, school environment, and community/neighborhood.
How the children will be affected by either continuing the current custody arrangement or disrupting the arrangement.
The children´s desires/wishes (if they are able to express their own desires – in Texas this is currently for children 12 years of age or older).
Credible evidence of domestic violence, abuse, or neglect by either parent.
Whether false allegations of abuse or neglect have been brought by either parent against the other.
While these are listed in no particular order, I would point out that in my own experience, the first three and the last two receive the most attention. The domestic violence issue is particularly important in that there is public policy on two fronts involved and abuse, or false allegations of abuse, are indicia of the willingness to support and facilitate the children´s ongoing relationship with the other parent (the first factor in the list above). Again, this is not nor can it be an exhaustive list of factors, it is however, the factors that have been expressly enumerated by the Supreme Court of Texas and therefore these are factors your Judge will consider. Which brings me full circle to the original question: “How do I win custody?”
The answer is show the Judge that you are the better parent and you can do so using the list above. As a case-in-point, and I too have been guilty of this act, I was witness to a recent custody case where the two parties spent substantial time throwing mud on the other parent, politic style. Neither parent ever mentioned one of the factors above, rather both spent all their time and energy on trying to persuade the judge the other parent was a “bad person” or “bad parent”. At the end of the case the Judge was left to select between the lesser of two evils.
My client´s case was called right after the one I just described. Having watched the Judge during the preceding case and observing his reactions, I started out by calling the other side a “good father, and we pray, your honor that he will someday be the daddy this child deserves.”I then went on to tell the Judge my client would do everything in her power to make that happen. My client won custody – not because I am a great lawyer, but because in that case the father and his attorney spent all of their time and energy trying to call my client a bad mother. We brought up only one issue, but our issue was the one the Judge MUST consider.
It is your choice: run a negative campaign against the other parent like a politician, or stand for something. Who would you vote for?