The Father’s Perspective
Fathers can sometimes be more confused and intimidated by the legal process than mothers. We men tend to be less likely than women to admit we need help. Our instinct is to run or fight. And if we are in a situation where we do not know how to fight, then that leaves only one option…unless you are willing to get help. No system is 100% fair, and the family courts and laws can be very difficult to navigate. Attorneys sometimes struggle with this, so imagine where that puts you. No one is going to fight for and/or protect your rights if you are not willing to do so yourself. You need to exercise your rights when going through the court process AND after the final order is issued. It is up to you to make sure you get time with your children. Attorneys and courts are here to help, but you have to initiate it.
Primary custody is not a legal term, but rather a lay person’s term. However, it is sufficient for a basic overview. In Texas, the mother usually has ‘primary custody’ of the children. This is not because of the law or bias, but because most couples want it that way. In fact, the Texas Constitution prohibits discrimination based on sex. So each parent enters the courtroom on equal footing when it comes to custody rights. It is all the other variables that make the difference. The Court will look for what is “in the best interest of the child.” Therefore, whether you enter the courtroom on equal footing when everything else is taken into consideration varies from case to case. Fighting over custody of children can be the most difficult of cases and not something to do without an attorney.
Possession and Access
It is the goal of the State of Texas and the Courts for the children to have as much access to each parent as possible. Remember, the Court is focused on what is best and fair for the children, not the parents. Children are presumed to better off with extensive time with each parent. The exceptions are mostly obvious: drugs, crime, abuse, neglect, etc. Therefore, even if you do not have ‘primary custody’, you will still have the right to time with your children. Your decree will state what days, times, holidays, etc. that the children are to be in your possession.
It is common for one parent to pay child support to the other parent. There are ‘guidelines’ for child support in the Family Code and the Courts will usually follow those guidelines. However, the Courts can go outside of the guidelines in some situations. Also, the parents can usually agree to a child support amount and the Courts will accept it, unless the Court feels that it is ‘not in the best interest of the child.’ The amount of child support – like everything else in a court order affecting children – is subject to modification. So even if you agree to one amount in the Decree of Divorce that does not mean it cannot be changed at a later date.
Everyone knows that failure to pay child support can lead to jail time as well as other enforcement actions. This is true for mothers as well as fathers. The jail time is for ‘contempt of court’. Basically, when you fail to follow the order of a court, the court can put you in jail. What many people do not realize is that all provisions of the Order are subject to court enforcement, including possession and access. So if the mother of your children is interfering with your access and possession, you have the same right to go back to court to enforce that order as a mother who goes back to enforce child support. Will the Court throw her in jail the first time you go? Probably not…just as they generally do not when someone is behind on child support. However, Tarrant County judges (as well as surrounding counties and probably all judges in Texas), take possession and access just as seriously as support. Whether you need to enforce an order or someone is trying to enforce it against you, this is a complicated area. Don’t take risks…consult with an attorney immediately.