No Mommy Presumption for Custody in Texas.

As a Dallas divorce lawyer, I am often asked whether court's still presume that custody of a child should go to the mother as opposed to the father.  The short answer is no.  Courts are not permitted to consider the gender of the parent (or the child) in making decisions regarding custody.  Generally the best interests of the child are the primary considerations the court assesses in determining custody issues.  The best interests of the child are frequently referred to as the Holley factors because of the case they were set forth in.  See Holley v. Adams, 544 S.W.2d 367, 371-71 (Tex. 1976).  Since 1976 the best interest factors have been divided up into three broad factors: (1) the ability of the either parent to care for the child; (2) the ability to maintain a family relationship; and (3) parental fitness.

Historically, gender played a role in assessing parental fitness.  This role led to the development of the "tender years doctrine" which in essence stated a child should not be separated from his or her mother.  Early records of the tender years doctrine date back to the mid 1800's and needless to say there have been dramatic shifts in socio-political viewpoints since that time.  The trend towards moving away from the mommy presumption and tender years doctrine gradually made its way in to Texas Case law and eventually was codified in the Texas Family Code.  According to Section 153.003 of the Texas Family Code, the court cannot consider the marital status or gender of either parent in making decisions regarding custody.

This shift away from the tender years doctrine coincides with the shift towards parents sharing their rights and duties equally.  In fact, there is a possession schedule set forth in the Texas Family Code that applies in most cases (in the absence of a showing why it should not) which effectively gives parents equal rights, duties and almost possession periods of their children. 

Despite the shift away from the mommy presumption, there are some judges who retain an "old school" mentality and still believe that the child should remain with his or her mother.  This is where hiring an experienced divorce attorney is critical, because if your case happens to land in a conservative judge's court, then your attorney will have to clear the mommy presumption hurdle. 

In short, the tender years doctrine has been, for the most part, put to bed in Texas courts.  However, it still pays to know the judge's preferences your case is assigned to. 

Married men = higher income.

I recently came across an article on Time Magazine's website that was pretty interesting.  According to a study completed by the Pew Research Center, married men have a 60% higher income than they did in 1970, whereas unmarried men only experienced an increase of 16% in income. 

According to the study, one of the reasons that married men experienced a higher increase in income is because the percentage of men marrying women who earn as much, if not more, than they do has also increased since 1970.  Coupled with this is the fact that there has been a dramatic increase in the number of white collar women.

Another interesting point was that there is a decrease in divorce among college educated couples, and an increase in divorce between non-college educated couples.  Apart from the homogamy aspect of the studies, it was interesting to learn about correlation between income and duration of marriage. 


Custody Battle: Dad's Story

A New Generation of Fathers is Fighting for Custody -- And A Fair Shake In Court from Working Mothers Magazine.

By: Philip Lerman

“Yes, but who’s going to cook them dinner?” When Ben Oshman got that question from a judge hearing his request for custody of his three kids, he was furious. Because whatever new challenges moms have these days, when it comes to custody, things haven’t changed much for dads—especially the gender-based stereotypes that render them the second most important parent.

But now, dads are fighting back, demanding custody where custody’s due. Their motivation is simple: “I wanted to have kids. I wanted to have the family,” says Oshman, who ended up getting joint custody of his three girls. To him, divorce “didn’t mean I should have to give up my family.”

A groundswell of support is rising up for dads seeking custody, as evidenced by the increasing number of groups like dads rights (, Custody Warriors ( and “Fathers increasingly want to be more deeply involved with their children”—a desire that doesn’t disappear after divorce, says Danny Guspie, executive director of Fathers resources international, a group that advises divorced dads. “When you see some dads have success, it encourages others.”

Thirty years ago, dads never litigated for custody, says Jeffery M. Leving, a Chicago lawyer at the forefront of the fathers’ rights movement. “Men didn’t place fatherhood at the top of their priorities. Now, if they face a divorce, their children are their main priority, and they will fight to avoid being kicked to the curb.”

Bottom line: dads say they’ve become better parents, so they deserve a better chance. “They’re demanding more fairness,” says Leving, “and sometimes they’re getting it.”

Philip Lerman is the author of Dadditude: How a Real Man Became a Real Dad.


More Fathers Are Getting Custody In Divorce

Illustration by Barry FallsThe New York Times reports today:  More Fathers Are Getting Custody In Divorce by Lisa Belkin.

Working Mother Magazine published a package of articles on Tuesday called “Lost Custody,” about the new reality of divorce and child custody for working mothers.

It is filled with tales of women who were the primary earners in a marriage, and who watched their husbands gain primary physical custody of their children when the marriage ended. There are now 2.2 million divorced women in the United States who do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek such custody in a disputed divorce are granted it.

As the writer Sally Abrahms describes it:

Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

The “tender-years doctrine,” a court presumption that mothers are the more suitable parents for children under 7, was abolished in most states in 1994. And, in large part because of the recession, women are poised to outnumber men in the work force for the first time in American history. Job layoffs affecting more men than women have yielded a burgeoning crop of Mr. Moms.

“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder. “This is one of the dark sides of women’s accomplishments in the workplace — they’re getting a raw deal in custody cases, while men are being viewed more favorably.”

Or is it a raw deal? Is it not, in effect, the same presumption — the parent who works harder, parents less — that men have faced for years? You could make that argument, Abrahms says. You could also argue that working women are held to a higher parenting standard than working men, paying a price for not conforming to the cultural expectation that mothers be more hands-on than fathers.

Either way, the percentage of fathers with primary custody will likely increase, one more example of shifting social views about parenting. And there will be more stories like the one Abrahms tells of Julie Michaud, who ran her own business, which supported her family, while her unemployed husband cared for the couple’s 7-year-old son and 5-year-old daughter. As Abrahms writes:

Julie sat helpless as Mark’s lawyer argued that he was the one who arranged the playdates, took the kids to the pediatrician and volunteered at their schools. Affidavits from teachers and neighbors attested to his hands-on involvement in their daily lives. Meanwhile, Julie’s long hours at work meant that people in the community didn’t witness just how much parenting she did out of view. No one saw the lunches she packed every morning, the all-nighters she pulled when the kids were sick. “If I could have done things differently,” Julie says today, “I would have made myself supervisible.”

If a mother works more, and a father less, is that a logical reason for the children to live with him? Have you felt the swing of this pendulum in your own life?