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Primary Custody: The Myth of Gender Bias

Primary custody is a pivotal issue for parents involved in a divorce, and there is a common myth that a gender bias exists in the courts when primary custody is at issue in the case.

While this may be a common belief “on the streets,” in my experience it is not something that holds true.

Perhaps 15 to 20 years ago, you might have seen gender bias among the courts and custody issues. However, you’ll find the courts to be more balanced in their perspective. This is certainly the case here in Travis, Williamson, Bastrop and Hays Counties. In my experience, the only time I can honestly say I’ve seen a bias is with infants and very small children. But even if a mother is still breast-feeding her baby, a capable father should have the right to consistent visits to bond with his child, as this time with the father is critical to a child’s attachment and health development. Once kids pass the age of 12 months, I have been in many circumstances in which both parents shared equal custody, or the father won primary custody.

Today, many fathers are more educated and informed about child rearing and adapting their work schedules to spend time bonding with their children. The traditional notion that fathers cannot find the time to act as single parents is long gone. In today’s world of telecommuting, home-based business and flexible employment schedules, dads can incorporate 50-50 custody or even primary custody situations into their lives more easily than ever before. Frequently both parents are required to work and share the parenting responsibilities, meaning that each is equally capable of serving as the children’s primary parent. As a result, courts truly do look for what’s in the child’s best interest, regardless of gender.

Even when dealing with infants, however, a mom with a history of alcohol or substance abuse, neglect, violence, or serious mental health or medical issues may obviously not be capable of being a primary parent. This may have been the case in a two-parent household, but once separation occurs, it is a very different story having to parent all by oneself during the primary week.

Of course, most cases are not quite so clear-cut. If the scales between a father and mother are fairly evenly balanced, which is typical for most situations, courts then usually look to more subtle issues such as:

(1) Does the child have special needs?

(2) Does the child require significant/intensive care and supervision?

(3) How far apart do the parents live?

(4) How well can the parents cooperate with the other?

(5) Do the parents encourage a relationship with the child and the other parent?

(6) How well do the parents communicate to the other?

(7) Stability in that person’s work, personal, living, and other areas of life?

(8) Does a parent seek to undermine the child’s relationship with the other parent?
For dads, there are some basics such as:

(1) How connected you are with your children?

(2) How plugged in you are to their daily lives and activities?

(3) Do you know your children’s doctors, teachers or other professionals?

(4) Do you take part in their school events? Extra-curriculars?

(5) Do you willingly provide financial support for the children?

(6) Have you demonstrated consistent behavior and a strong parent-child bond?

(7) Is there another relationship, and are the kids spending time with that partner?

These are the questions the court will ask; the same questions will be raised about the mother. Of course this list of factors is by no means exhaustive or all-inclusive, and the factors the court chooses to weigh varies on a case-by-case basis. But these factors can indicate to the court how much cooperation and attention both parents should be able to devote to the child’s welfare, above their own issues with the other parent, both separately and together.

If you are a truly involved father and can set aside conflict with the other parent and truly cooperatively parent with the mother and your life/work circumstances allow you significant with your children, you might be surprised at how willingly the court will consider or even award equal, joint, custody and visitation or depending on the circumstances primary custody.

Such fathers carry a kind of premium at the family law courthouse. It is exceedingly rare to see a father fighting for such rights in court where he has proven himself capable of putting aside his conflict with the other parent. However, it is still possible that the other side may continue to drive the conflict, and this is where experienced legal counsel and representation can truly pay off.

Ultimately, you can expect primary custody to be awarded to the parent who offers the more stable, supportive life for the child. With respect to “dad’s rights,” primary custody is only part of the picture. The term “primary custody” is commonly misunderstood until a parent truly understands what joint conservatorship in Texas means and the myriad of options available through negotiation. If you feel that primary custody is an issue in your case, our law office can help you.

Put the experience of our law firm to work by contacting us today at (512) 628-2550 to discuss your case. You can also contact Mr. Evans directly at his private email address