The Rights of the Father

The Rights of the Father

• May 13
• Evans & Herlihy
• Family Law

Fathers have more rights today than they had years ago when mothers were almost always granted primary custody of the children, but many divorcing fathers still must struggle to obtain them.  This can happen even though in today’s world both parents often work, fathers may be the stay-at-home parent and may actively participate in their children’s lives, and the importance of children having a father’s presence has been recognized. Children who do not have a father in their lives suffer many negative effects, such as being more likely to use drugs or drop out of school.

Texas law recognizes the father’s equal right to be considered as the primary conservator, and courts are more likely to award custody to fathers than they used to; but mothers more often wind up having more benefits and control, especially when the children are young.

How the Child Custody Laws in Texas Have Changed

According to Texas law, the parent’s sex cannot be used as a consideration in making custody decisions for children. The Texas Family Code of 1987 attempts to assure that children have frequent and continuing contact with both parents, so long as this is in the best interest of the child. Custody consists of both legal custody and physical custody.

In 1995, the legislature added the presumption that, unless there is a history of domestic violence or some other good reason, the court shall appoint the parents to be joint managing conservators. This means they have joint managing conservatorship (JMC), or joint legal custody, with an equal say in making decisions for the child in important areas, including education, medical and religious matters, as long as this arrangement best serves the child’s interests. The rights the sole managing conservator had under the old way of doing things can now be made …

1. 1. exclusively by one parent,
   2. jointly (both parents need to agree before a particular decision can be made for the child), or
   3. independently (either parent can make a particular decision for the child, without the consent of the other parent).

Other Custody Considerations in Texas

Physical custody, having to do with which parent most often has possession of the child and in whose home the child primarily spends time, is also a consideration. Fathers may be entitled to joint physical custody, with the children spending a substantial part of their time in both parents’ homes. Either parent may also be entitled to sole custody, where the child spends most time in that parent’s home and the other visits with the child according to an agreement or schedule.

In making decisions regarding physical custody, Texas courts consider a number of factors, including:

• the mental health and physical health of each parent
• any history of domestic violence or child abuse
• the health and safety of the child
• the child’s preference, if the child is 12 and older
• which parent was the primary caretaker before the divorce.

Fathers whose rights are being denied should seek legal counsel, as some mothers will try to deny visitation or even falsely accuse a father of abuse to keep him from his child.

If you are concerned about your rights as a father, contact the child custody attorneys at the Evans & Herlihy Law Firm to schedule a free consultation with our team. We want to make sure your rights are observed. Give us a call or fill out our online contact form to get started.