Texas Divorce Law...

Texas Law - Who Gets Custody?

In making its award, the court considers what is in the best interest of the child, without regard to the gender of either parent.

The state leans toward joint legal custody , if joint legal custody would not impair the child's health emotional development.

This is not the same as encouraging joint physical custody. In fact, the law encourages sole physical custody , with visitation by the non-custodial parent.

The court will consider the following factors in deciding on joint legal custody:

• Whether the physical, psychological, or emotional needs and development of the child will benefit from joint custody;
• The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;
• Whether each parent can encourage and accept a positive relationship between the child and the other parent.
• Whether both parents participated in child-rearing before filing for divorce
• How close to each other the parents live
• The child's preference, if the child is age 12 or older
• Any other relevant factors

Joint custody will not be awarded where there is a history of family violence, neglect, or abuse by one spouse against the other spouse or any child. A false accusation of abuse may boomerang against the accusing spouse.

State law encourages the parents to enter into a custody agreement (which the law calls a conservatorship agreement) themselves.

The alternative to joint custody is sole custody .

Section 153.002, 153.003, 153.004, 153.007, 153.013, 153.134

Note: In most of the cases below, the father was awarded custody. In most divorces in Texas, as everywhere else, the mother obtains custody. It may be that it is the rarity of father-custody that inspired the mothers in these cases to appeal.

Cases:

Wolfe (1996) 918 SW2d 533 (The mother had, without permission, taken the child to New Zealand. Later, the mother was stopped at the airport trying to take him to Australia. The mother had been absent for over half the year for several years before the divorce. The mother lied repeatedly in her testimony before the court. The father engaged in an extramarital affair, and had a gym bag with sex toys and pornographic magazines. The child had never seen the bag and was unaware of the father's activities. The court did not show the contents of the gym bag to the jury, although both father and mother testified about the contents. The jury awarded custody of the child to the father. The appeals court upheld that award. The appeals court said that, since the child was not exposed to the bag, and since there had been testimony about it and the father's activities, then it was not an error for the judge below to have excluded the gym bag from being shown to the jury.)

Valdez (1995) 930 SW3d 725 (father was awarded custody where mother had been working as a topless waitress for a year since the divorce and had left the child with the child's maternal grandmother who did not have court-granted custody. The daughter may have been molested by a relative living at the maternal grandmother's house. The daughter was afraid of the mother).

Zuniga (1994) 664 SW2d 810 (The court awarded custody of three boys, ages 12, 8, and 7 to the father, and awarded custody of a fourth boy, age 2 -- judgment was rendered on his second birthday -- to the mother. The court stated that siblings should not be split up except under compelling circumstances, but found that these circumstances were sufficiently compelling. The father claimed to have done all the cooking and cleaning for all the boys. He was a farm laborer and gasoline attendant. The mother had worked until midnight three days a week but claimed to wash and cook for the boys the other days. The mother had a somewhat higher earning potential than the father as a result of her one year of business school and computer training. The oldest boy was interviewed and said he wanted to live with the father because the father took care of him. Also, the father's mother lived nearby and helped every day.).

Kotrla (1986) 718 SW2d 853 (The mother admitted to having used marijuana and cocaine in 1982 or earlier, prior to the marriage. The mother also had "an association with" a lesbian. The court was allowed to consider all these factors in awarding custody to the father.)

Sharp (1986) 710 SW3d 696 (The fact that wife was living with a married man did not, by itself, disqualify her from being custodial parent. In this case, the evidence suggested that the man and the daughter had a good relationship. There was also evidence that the father left hard-core pornographic materials out in the front room where the child could see them.).

Glud (1982) 641 SW2d 688 (The court awarded custody of two boys, age 11 and 10, to the mother. The judge said, "In my opinion I think it would be detrimental looking at it from a man's standpoint, and I'm a man and father, Mr. Glud, I think it would be very difficult for a man to raise two boys like a woman can. Therefore I'm going to name her as managing conservator of the children." The appeals court concluded that this showed gender bias against the father. Both parents were loving and capable of caring for their children. The appeals court ordered a re-trial on the custody issue).

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