Who gets the kids in a divorce or when parents split up?

Sad Child Parents on Beach in Background

Divorce and child custody battles often go hand and hand. If you’re getting a divorce (or never married but split up with your child’s other parent), who gets custody of the child in divorce is probably top of mind.

You may also be wondering how to get primary custody, and how custody works in general. We’ll examine those divorce custody questions and others here.

To get a thorough analysis of your divorce child custody case in Tarrant County, schedule a confidential case review here.

How Texas family courts decide who gets the kids in a divorce

In Texas, the family court will consider several factors before making any decisions about child custody and visitation. The best interest of the child is paramount, and the presumption in Texas is that a standard or expanded standard possession schedule—where the parents share custody of the child—is in the best interest of the child.

The age of the child may also play a role in who gets the kids in a divorce. For example, from ages 0 to 3, the court typically will award the parent who has been acting as primary caretaker (either mom or dad) primary custody—unless she or he poses a danger to the child. That’s why the presumption of the best interest regarding the standard and expanded standard protection schedule does not kick in until the age of three.

That’s not to say that a father can’t get an expanded standard or a 50/50 custody arrangement for a young child. There simply is no presumption like there is when the child reaches the age of three and beyond.

The child’s preference may also be considered; however, in Texas, the child does not have the right to choose whom he or she lives with. We often see teens who want to live with dad instead of mom, and that’s great, as long as dad can provide a safe, healthy and stable environment for the child.

The courts also look closely at what roles and responsibilities each parent has been handling already. They want to identify which parent has been acting like the primary parent, the one who generally does most of the heavy lifting, like taking the kids to the doctor, dropping them off at school, helping with homework, etc. That’s the parent who will likely be named as the primary caretaker and be the primary decision-maker for the child.

Keep in mind, the duties and responsibilities of the parents can be negotiated during mediation, but if the two parents disagree, the judge will rely heavily on parental history when making a decision.

Along with identifying who has been acting as the primary parent, the court will consider evidence of additional best interest—meaning are there any problematic issues with either parent?

The court considers any negative factors that would preclude a parent from assuming the primary role (or in custody modifications, continuing in the primary role). That’s where you get into the issues of alcoholism, drug use, domestic violence or an unstable household or environment.

To find out how to get primary custody in your specific case—and if that’s even an option for you—contact a divorce attorney to review your case and discuss options. If you’re wondering how to get full or sole custody in Texas, check out this recent post.

How to get primary custody or modify custody at a later date

If you want to get primary or sole custody OR flip custody, you need clear and convincing evidence that you’re best suited for the role of the primary parent. Texas judges hold true to the cliché that the punishment must fit the crime. If you can’t prove the other parent is unfit or provide evidence as to why he or she should no longer be the primary parent, then there is no crime.

Why some dads don’t get primary or 50/50 custody.

A lot of times we have fathers come in to our law firm and say, “I want 50/50 custody.” But what they really want is to offset the child support they’ve been paying. If they’ve never done anything that remotely resembles being a 50/50 parent, then modifying that custody arrangement is highly unlikely. Again, if the child is living in a safe, healthy, happy environment with mom, there’s no crime.

Why other dads DO get 50/50, primary or even sole custody.

If the facts and evidence exist that prove mutual involvement, with both parents sharing in the parenting roles and both parties working, that case is a great candidate for a 50/50 custody arrangement.

Conversely, if the evidence shows that dad’s doing the heavy lifting and mom’s not around, or mom is unstable and dad has been taking care of those primary roles, that case would be a great candidate for primary conservatorship or even sole custody for dad. In fact, our divorce lawyers in Fort Worth TX are delighted to fight for primary custody for dad or to flip primary from mom to dad if it’s in the best interest of a child.

What are the chances of a father getting full custody?

We’re happy to say there’s a more level playing field for dads today than in years past. Now, winning full or sole custody is never easy in Texas—for dads or moms. Texas does believe it’s in a child’s best interest to have a relationship with both parents. However, we’re happy to help fathers get full custody if proof exists that the mother is unfit or poses a physical or emotional danger to the child.

How a mother can lose a custody battle.

We recently had a case where the mother—who was the primary conservator since the entry of the order—had moved around multiple times. She then moved in with her boyfriend and was living with the child in a one-bedroom apartment. The child was also illegally enrolled in the school district where the grandma resided. Dad had a stable home and wife, and the child had her own bedroom. We were able to flip primary custody to dad because that was clearly in the child’s best interest.

It’s critical to get things right from day one if you want to get a favorable custody arrangement

And by day one, we mean what you establish in your temporary custody orders. That’s because those temporary orders often foreshadow the final orders in divorce and child custody cases. It all boils down to getting a clear plan and case strategy established at the beginning of your case and sticking with it—and why the initial consultation with your divorce attorney is so important.

It’s also critical to get organized and be prepared. At our Fort Worth family law firm, we don’t look at mediation simply as where you go to reach a divorce and child custody agreement. We believe when you go to mediation, you’re going in to try your case. That’s why it’s essential to pull evidence, research, documentation and timelines together upfront, so your divorce attorney has all of the ammo he or she needs to negotiate a custody arrangement that is favorable to you.

Three other important things to know in the early stages of a child custody battle:

  • Sometimes the result you want or what you think you want is just not feasible based on the way you’ve set things up or how you’ve behaved before you get into your lawyer’s office.
  • If you don’t get the results you want in a temporary order, you should appeal it right away (appeals must be filed within three days of the ruling in Texas).
  • Once a precedent has been set regarding custody, modifying custody can be very challenging. The burden of proof is much higher in a modification than the original case. Do your best to get it right the first time! Hiring an experienced child custody attorney is key.

Need child custody insight from a family law attorney in Tarrant County?

Our Fort Worth family lawyers are here to help. To schedule a thorough and confidential case review with our founder Fort Worth divorce lawyer Justin Sisemore, contact our office at (817) 336-4444 or connect with us online.

Photo Source: Canva.com

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