Does Texas Favor the Mother in Child Custody Cases?

Until relatively recently, many courts, including in Texas, did favor mothers in child custody cases. Those days are gone, however, at least officially. Texas child custody law is now strictly gender-neutral. To fully understand the Texas child custody landscape you need to learn the prevailing legal standards and the factors that influence custody determinations.

The legal standard in Texas custody cases

Do Texas courts favor the mother or the father? The question itself is misleading. It would be more accurate to say that Texas courts favor the child. The “best interests of the child” is the primary consideration in matters of child custody. This is true in Texas as well as every other state — there is no presumption in favor of either the mother or the father. All other things being equal, Texas family courts prefer joint custody arrangements.

Texas local nomenclature for custody cases

Texas child custody law is broadly similar to the child custody law in other states. It just uses different words to describe similar relationships and concepts.

• “Joint managing conservatorship” in Texas means something similar to “joint legal custody” elsewhere, although not exactly. Both parents share decision-making authority on behalf of the child on matters such as religion and medical decisions.
• “Sole managing conservatorship” in Texas means something like “sole legal custody” elsewhere, but not exactly. Under this arrangement, one parent has the exclusive right to make decisions for the child. A Texas family court may appoint the other parent as a possessory conservator with limited rights (such as visitation).

Texas doesn’t use the term “physical custody.” Instead, it uses the following terms:

• “Possession,” which means physical care and control of the child
• “Access,” which means the right to interact with the child through activities such as phone calls, direct messaging, attending soccer games, and presence at doctor’s appointments, short of physical possession.

These terms reflect Texas’s emphasis on encouraging the involvement of both parents. If you’re confused, a San Antonio child custody lawyer can help you understand the application of these terms to your case.

Factors that influence child custody decisions

Texas family courts weigh several factors when making custody decisions on behalf of a child, including:

• The child’s physical and emotional needs. The child might suffer from a physical disability, for example.
• The parenting ability of each parent.
• The involvement of each parent, since one parent might be more involved in the child’s life than the other parent.
• The stability of each parent’s home. This is very important for the child’s emotional well-being.
• Any history of abuse or neglect. Any such history is devastating to that parent’s chances.
• The child’s own preference is taken into account if they are at least 12 years old.

The foregoing factors illustrate how Texas law emphasizes behavior, not gender.

Historical trends and changing norms

At one time, the courts of Texas and every other state applied the “tender years” doctrine. This doctrine favored the mother for possession (physical custody) based on the idea that children under about five to seven years old needed the care of their mother more than the care of their father. The tender years doctrine was never a part of Texas statutory law, but Texas family courts applied it until at least the mid-20th century.

The modern emphasis on gender equality eroded support for the tender years doctrine until it finally disappeared. Now, Texas statutory law includes something close to an explicit repudiation of the tender years doctrine (”No Discrimination Based on Sex or Marital Status,” as the Texas Family Code puts it). Not only is custody more often awarded to the father than in previous years, but fathers are typically more involved with the raising of their children than before.

Do mothers still win more often?

Despite the abolition of the tender years doctrine, available data from census.gov suggests that mothers still end up the primary custodians of their children more often than fathers. The reasons for this disparity need not include gender discrimination, however.

It might be the case, for example, that the mother is the more involved parent prior to the custody determination. Stay-at-home mothers are more common than stay-at-home fathers, for example. A court might react to this state of affairs by awarding custody to the mother to maintain continuity of care. Continuity of care is a gender-neutral standard, however, even if its application appears unequal.

How fathers can strengthen their custody cases

Below is a list of tips for fathers hoping to increase their chances of winning custody of their children:

• Be involved in daily parenting. If you’re not as involved in parenting as the mother is, courts might factor that in when determining custody.
• Save copies of emails with teachers, school event calendars, sign-in sheets for parent-teacher conferences, homework assistance logs, photos from events you attended, and any other evidence that can establish you as an involved parent.
• Avoid unnecessary conflict with your ex. Although under certain circumstances conflict might be unavoidable, do your best to minimize it.
• Prioritize the “best interests of the child” over your interests.
• Focus on cooperation with your ex so that your child can enjoy a stable home life -– or at least a home life that is as stable as possible under the circumstances.

Texas courts strongly favor joint custody (possession) arrangements – although that need not always mean 50/50 time with the children.

San Antonio child custody lawyers can dramatically improve your odds of success in a child custody dispute

On its face, Texas law does not favor mothers over fathers. Although a moderate outcome bias in favor of mothers does seem to persist, this correlation does not necessarily imply that courts are inherently biased in favor of mothers. Except in rare cases, custody decisions are based on what benefits the child most — not the parent’s gender.

Although no ethical family lawyer can offer you an absolute guarantee, you can maximize your chances of success by working with the experienced San Antonio child custody lawyers at Grimshaw Divorce and Child Custody Lawyers. We offer our clients unparalleled focus, integrity, and passion to achieve the best possible outcome for your case.