The Law Offices of Bobby L. Warren, PLLC

An article in yesterday’s Houston Chronicle contained the results of a Pew Research Center study that would surprise many people: 8 percent of all American households with minor children now have single fathers raising those children.  That is an all-time high and a surprising number when you consider that only 1 percent of such households had a single father raising children in the 1960’s.

This new information simply bolsters what I have been telling clients for years now – the old days where courts are heavily biased in favor of mothers raising children are over.  Courts have long been prohibited by law from using gender as a factor in deciding which parent determines the residence of their children.  This, however, did not stop judges from disproportionately placing children with their mothers.

So what has changed?  A substantial shift in traditional gender roles has occurred over the last several decades.  In many two parent households, both parents are working.  In a growing number of American households, the mother is the primary income earner, with the father working fewer hours or acting substantially as a “stay at home parent.”

Texas family court judges have long sought to keep children in divorces and child custody disputes in a situation that closely resembles the status quo.  In other words, judges want to keep the amount of change in a child’s life to a minimum.  Therefore, if a child’s mother is working outside of the home for 50+ hours per week and the child’s father works primarily at home, where he has been the primary caretaker of that child, the father is likely in a stronger position to argue that the child should primarily live with him.

The key for any divorce attorney or child custody attorney is to identify those factors which weighs in favor of the client being the primary caretaker for their children and to collect evidence which supports that position.  As I have repeatedly emphasized to my clients, that is a much more successful strategy than attempting to point out the weaknesses of the other parent.

On Wednesday, the Supreme Court of the United States issued a number of slip opinions.  Two of these opinions concerned various laws which impacted gay marriage.  What impact do each of these cases have on family law in Texas?

One, Hollingsworth v. Perry, resolved the question of whether a private organization had standing to defend California’s Proposition 8, which defined marriage as being between one man and one woman.  In Hollingsworth, various California government officials were named as defendants in a lawsuit filed by a gay couple seeking to have Proposition 8 declared to be in violation of the United States Constitution.  The named officials declined to defend the litigation.  A private group in favor of Proposition 8 decided to step in and defend the law in the place of the named officials.  Ultimately, the Supreme Court of the United States decided that the private group did not have standing to defend the law, so the case was remanded to the trial court to proceed without the defense of the private group.

The other, United States v. Windsor, was concerned with whether a woman legally married to another woman was entitled to claim exemptions on federal taxes applied to inheritance that are available to those married to spouses of a different gender.  Under the federal Defense of Marriage Act (DOMA), marriage is defined for the purpose of federal law as being between one man and one woman.  This definition had the result of disallowing gay couples legally married in states recognizing such marriages from being allowed to claim a variety of benefits under federal law otherwise granted to married couples of different genders.  Ultimately, the Supreme Court of the United States ruled that DOMA violated the Equal Protection clause of the Fifth Amendment to the United States Constitution because it treated people legally married to someone of the same gender differently from those legally married to someone of a different gender.

For our purposes today, the only question I wish to address is the impact this could have on Texas law.  The short answer is that it will have no direct impact on Texas law in the short term, but may have some impact on those residing in Texas who have entered into legal same-sex marriages in other states.

First, let’s dispel any myths about these rulings.  Hollingsworth did not directly touch upon the question of whether a state can outlaw gay marriage.  The Supreme Court of the United States has long had the policy of attempting the resolve cases before it on procedural grounds first, if possible, before approaching substantive issues.  In this case, it had to first determine whether the private group defending Proposition 8 had standing to defend the law.  Once the Court determined that there was no standing, the remaining questions are left unanswered under the rationale that the case should not be before them to begin with.  Therefore, while the trial court ruling that Proposition 8 is unconstitutional will likely be the final result in Hollingworth, that ruling has no impact on the law in Texas which prohibits recognition of same-sex marriages.

As for Windsor, the impact is a bit more direct for some Texans.  The fact that Texas does not recognize same-sex marriage does not prevent the federal government from recognizing such marriages for limited purposes.  Also, many states that permit same-sex marriages do allow out-of-state residents to marry in their state.  Therefore, there are a number of same-sex couples in Texas, who married in other states, who now have the following rights they were previously denied under DOMA:

• One of the most sweeping impacts will be on same-sex couples where one or both of the spouses are members of the Untied States Armed Forces.  Despite the lifting of the “don’t ask, don’t tell” policy, the Pentagon was otherwise prevented from extending many benefits to same-sex couples in the military due to DOMA.  Now, those couples will receive many, if not all, of the benefits that spouses of different genders now enjoy, including health care benefits, access to military bases (which include base exchanges), increased housing allowances and survivor benefits.
• Same-sex couples in Texas and elsewhere who are legally married may now file their federal income taxes jointly as marred.  This could provide substantial cost savings on tax bills, especially if one spouse earns a substantially greater salary than the other spouse.
• Under the federal Employee Retirement Income Security Act (ERISA), employers will now be able to offer health care and other regulated benefits to the non-employee same-gender spouse of an employee with the same beneficial tax treatment that is now extended to spouses of different genders.
• Same-sex spouses will now qualify to receive Social Security survivor benefits.
• Same-sex spouses will now be recognized for immigration purposes, opening the door to allow the issuance of fiancee visas and a path to permanent residence and citizenship for those same-sex spouses of United States citizens.

The list could go on for some time, although I believe the above changes to be the most impactful for same-sex couples in Texas and elsewhere.

It’s shocking how much misinformation is floating around among those looking for help with their Texas child custody cases.  The scary part about it is that I get calls to my Houston office with the same “myths” being repeated over and over.  Obviously, it’s coming from somewhere, and I often find out from those that call my office that they get their information from the Internet.  In an effort to combat some of these myths, I thought I’d share some of the more prominent ones.

10)  The Court will prohibit my spouse from seeing our children because they smoke marijuana (or drink heavily, use pain medications, etc.)

That’s probably not true.  Courts are extremely reluctant to keep children entirely away from their parents, and a few mistakes in life usually aren’t enough to convince a court to take such a drastic step.  At best, the Court will likely issue an injunction prohibiting any party (you or your spouse) from using any substances for which they do not have a prescription within a certain period of time before periods of possession of the children are to begin, and for the duration of that period of possession.  The Court might even order a party to seek professional help for the substance abuse.

If, however, there is a history of the child being placed in danger due to the substance abuse, the Court might go so far as ordering supervised visits until the parent is cleaned up.  That, however, is a fairly drastic step for the Court to take.

9)  The Court will not award me custody of my children because I don’t work and my spouse makes substantially more money than I do.

Actually, if anything, the circumstances leading to that disparity in earning power might actually work in your favor.  Too often we hear from people who are stay at home moms or dads, while the other parent works.  This results in the stay at home parent becoming entirely dependent on their spouse for income.  In the event of a divorce, however, the Court’s primary concern regarding the children will be ensuring that they remain in a nurturing and supportive environment, preferably one that closely resembles what they have been accustomed to.  That usually means that the stay at home parent will be in the best position to provide that environment because they have been filling that role already.

So, how exactly is the stay at home parent supposed to support those children?  Well, for one, that’s what child support payments are for.  Obviously, most child support payments aren’t sufficient to cover all expenses, so the stay at home parent will likely need to find some work.  The fact, however, that one parent has been the primary caregiver for the children during the marriage, however, is a major factor for most Courts determining who should be the primary caregiver in a child custody dispute in Texas.

8)  The other parent of my children doesn’t work, so the Court isn’t going to award any child support.

That’s dead wrong.  How is this unemployed parent making ends meet?  Obviously they find ways to eat, keep a roof over their head and provide for other basic needs, right?  The Court is going to require them to find some means of doing the same for their children.  The child support may not be all that much – maybe $200 or $300 per month – but the Court will generally not allow a parent to simply shirk any financial responsibility for their children.

7)  Since the other parent of my children hasn’t shown up to exercise their possession in over a year, I don’t have let them take my child with them if they suddenly show up to exercise possession in our court order.

Wrong again.  Unless and until you obtain a modification of the child custody order you have in place, you are required to follow that order.  Unless the court order provides explicit conditions that require the other parent to exercise possession in order to continue to receive rights to periods of possession (the vast majority of orders do not contact such provisions), a parent can technically choose when and if they wish to exercise possession as they wish, so long as the court’s order gives them the right to that possession.

Therefore, it’s always a good idea to be proactive in the event a parent simply stops showing up.  Seek a reduction in their possession immediately to avoid the sudden shock of a child being forced to spend an entire weekend alone with a parent they haven’t seen in over a year and might not even really remember.  Waiting until the parent shows up on your doorstep one day is far too late to seek a change in the court orders.

6) The Court will likely just award us custody split exactly evenly.

Probably not.  Most Courts hold firm to the concept that a child needs one place they call home.  This is especially true of school aged children.  Courts will often award possession to one party based on a standard possession order or something similar (for a better description of what constitutes a standard possession order, click here to view a calendar issued by the Office of the Attorney General).

Splitting possession time of children (for example, one week on, one week off) generally causes too much chaos in a child’s routines and has a greater likelihood of contributing to behavioral problems and academic problems.  If you believe that the standard possession order isn’t quite in the child’s best interest, you’re better off making gradual changes to that standard order rather than starting from scratch.

5)  I don’t need child support from him (or her).  If my spouse and I agree, there’s no need for payment of child support.

It really depends on which court you’re in, but I wouldn’t bet on it.  Remember that the child support isn’t for you.  It’s for your child.  If you really don’t need the money, put it into a college savings account for your child so they have something to help with tuition and books when they go to college.  Or, you might want to consider putting it into a savings account as a sort of “rainy day fund”.  You may not need the money now, but who can say that will be the case in the future?

4)  When my child turns 12, they get to decide with whom they want to live.

Not quite.  While it is true that a Court is required to take into account the wishes of a child aged 12 or older in determining which parent primarily takes care of the child, it is not the sole factor.  In fact, the Court is actually allowed take into account the wishes of a child aged less than 12 years, but is not required to do so.  Just because a 12 year old or teenager believes that living with their mother (or father) is better for them doesn’t necessarily make it so.  The Court still has the obligation to review other evidence and make a decision based on all relevant factors.

Generally, the judge will sit down with the child in chambers (sometimes with or sometimes without the attorneys present) and will talk with the child about their present situation, how everything is going with school, friends and extracurricular activities.  They will ask the child about how they like living with each parent and which one they most want to live with (and why).  At the end, the judge may use the conversation more to determine other issues than simply the child’s wishes.

3)  The Court is going to give me custody if I can just tell them how bad the other parent is.

There’s an old saying down at the courthouse that goes something like this: “10’s don’t marry 2’s.”  In other words, people who are perfectly well adjusted, have sound judgment and are in the best position to raise kids don’t go off and marry the scum of the earth.  Your strategy to denigrate the other parent and tell the Court just how bad they are might reflect on you as well as the parent of your child.  It may be tempting to use the opportunity to trash and embarrass the other parent, but it’s rarely a wise strategy.

It’s better to emphasize the qualities and circumstances that place you in a better position to take care of the children.  Sure, you can mention the foibles of the other parent, but you have to be tactful on how you do it.  It is imperative to always approach it from the perspective that you’re only looking out for the best interests of the children.  It pains you to raise such a delicate subject, and you dearly care for the other parent, but the issues must be raised in order to protect the children.  If you can take that approach when dealing with negative aspects of the other parent (but only after emphasizing your positives), the Court will give your concerns greater weight.

2)  The Court will surely order that the other parent not take my children around anyone they are dating.

As cliche as it sounds, this is the 21st century.  Courts see and hear things every day that would make your head spin.  The idea that someone ending a relationship  or marriage that produced children will find themselves dating again, sooner or later, is a common reality.  In fact, those parents may very well find themselves getting married (again).  If they do, your children will end up living with that step-parent at some point.  Do you really want the first time they meet this person to be at the wedding?

Courts will take some precautions.  It’s not unheard of for a Court to order parents not to allow someone with whom they are in a dating relationship to spend the night when the children are home.  That, however, is about the extent that Courts will go without further evidence that the new boyfriend or girlfriend is bad news.  Moreover, that “bad news” needs to be more than some misdemeanor they were convicted of 10 years ago.  Each Court is going to consider the best interests of the children on a case-by-case basis, but my general assessment is based on years of direct experience with my own cases as well as watching many more at the courthouse.

Also, keep in mind that there is another saying down at the courthouse (Judges love sayings): “What’s good for the goose is good for the gander.”  If you’re going to ask for some substantial impediment to your ex dating again, would you be comfortable enduring that same impediment?  If not, don’t even think about asking for such restrictions, because if you succeed, you might find yourself under the same conditions.

1)  Winning is the most important thing.

No, it’s not.  The best interests of your children are the paramount concern of the Court, and it should be yours too.  Before you can truly internalize that philosophy, you must be honest with yourself.  Do you, in fact, work very long hours and work and travel frequently, making it difficult for you to be the primary caregiver of your children?  Admitting that the other parent is in a better position to take care of your children on a regular basis doesn’t make you a bad parent or a bad person in general.  In fact, it means you’re putting your children’s interests before your own.

That being said, you should never hesitate to protect your rights.  Even if you cannot be the primary caregiver of your children, you do need an attorney who will be able to successfully navigate the process of a Texas child custody dispute and obtain for you the best possible result that protects your children’s interests as well.