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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 (dadsrights.org), Custody Warriors (custodywarriors.com) and dadsdivorce.com. “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.
 

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The 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?
 

 REEWY2Z2WP33

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In my previous post I talked about the various terms used in Texas courts regarding child custody.  I also stated that the best interest of the child is the first priority for any Texas court presented in a conservatorship and/or possession determination.  In this post, I'll continue our discussion by looking at the factors courts consider in determining what is in the best interest of a child (i.e., the Holly Factors). 

The first main category a court will assess is the parent's ability to care for the child.  Generally speaking the following seven factors are frequently considered:

• Which parent will best provide for the child's physical, psychological, and emotional needs now and in the future?
• Does either parent pose any physical or emotional danger to the child now or in the future?
• Which parent will present the most stability for the child?
• What are the parents' plans for the child?
• What level of cooperation exists between the parents? 
• What are the parenting skills of each parent?
• Which parent was the child's primary caregiver before the divorce was filed?

The second main category to be assessed is maintaining family relationships.  Generally, the following six factors are considered:

• The child's desires (if the child is 12 years of age or greater)
• The geographic proximity of the parents and other family members
• If divided or split conservatorship is requested, the court can consider what effect separation would have on the siblings
• The extent to which each parent can encourage and accept a positive relationship between the child and the other parent
• Whether any parent ever knowingly made a false report of child abuse
• Whether there is a need for measures to protect the child from being abducted to a foreign country. 

The last main category deals with parental fitness.  In this category there are mandatory factors and optional factors the court considers.  The three mandatory factors are: 

• Whether there is any credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by one parent against the other, a spouse, or a child
• Whether there is any evidence of the intentional use of of abusive physical force by a parent against the other or any person under 18 years of age that is committed while the suit is pending or in the two years before the suit was filed
• Whether there has been a commission of family violence

The following are optional factors for the court to consider as they relate to the parties to the suit:

• Each parent's present fitness to care for the child (including recent past conduct that is a reasonable predictor of current fitness)
• Whether either parent has a drug or alcohol problem
• Whether either parent's sexual conduct renders that parent unfit to act as a parent (for example, if a parent has pornography that is accessible to the child)

It is also a comfort to a lot of our clients that the court can NOT consider the following factors: 

• Martial status (although a parent's marital status cannot be used by itself to determine who should be appointed as the child's conservator, court's can consider a parent's marital stability)
• Gender
• Race
• Religion (except if the religion requires the parent to engage in illegal, immoral or harmful activities).

Although this may seem like a short list of factors, there are several nuances to each factor listed.  Now that we have the basic terms down and an understanding of what the Holly Factors are, in my next post I'll discuss the presumptions that apply is conservatorship determination and how they impact a party's desire for "sole custody." 

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In a July 31, 2009 opinion by the Dallas Court of Appeals, it was confirmed that Federal law trumps Texas law when it comes to income tax issues.  In In re S.L.M., the mother brought child custody proceedings against father.  The district court appointed mother and father as joint managing conservators and awarded mother the right to claim the children as exemptions on her federal income tax return. On appeal, father contended the district court erred in awarding mother the right to claim the two children as tax exemptions.  In re S.L.M., ___ S.W.3d ___, No. 05-08-01277-CV, 2009 WL 2343264 (Tex. App. - Dallas July 31, 2009, no pet. h.).

The Dallas Court of Appeals held the district court erred in awarding mother the exemption rights and examined tax exemptions under the United States Internal Revenue Code.  In computing taxable income, a taxpayer is permitted to claim dependents as exemptions.  29 U.S.C. Sect. 151(a) & (c).  The Internal Revenue Code provides that for divorced parents the custodial parent is the party entitled to the dependent exemption.  Id. at Sect. 152(e)(1).  The Internal Revenue Code defines a custodial parent as the parent having custody of the child for the greater portion of the calendar year.  Id. at Sect. 152(e)(4).

In applying the relevant provisions of the Internal Revenue Code to the facts, the court held that on any given week the father had possession of the children for approximately 100 hours as compared to 68 hours a week for the mother.  Accordingly, the trial court erred in awarding mother the dependent exemptions and reversed its ruling. 

The S.L.M. ruling shows that notwithstanding the power of the district court, Federal law trumps Texas law when it comes to tax issues.  As a Dallas divorce lawyer it is important to stay on top of not only family law developments but developments in other areas that impact family law, including (although sometimes mind numbing) tax law. 

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Thanks to Bruce Bain of Tyler for the referral to this article.  Lesson to be learned here for lawyers and litigants on Facebook... don't mention anything specific about any of your cases online.  Facebook is no different than a party, just a cyberspace social situation.  You wouldn't discuss the specifics of a case with a judge at a party.  Why would you post it on Facebook???

Judge Reprimanded for Friending Lawyer and Googling Litigant

A North Carolina judge has been reprimanded for “friending” a lawyer in a pending case, posting and reading messages about the litigation, and accessing the website of the opposing party.

Judge B. Carlton Terry Jr. and lawyer Charles Shieck both posted messages about the child custody and support case heard last September, the Lexington Dispatch reports. Terry also accessed the website of the opposing litigant and cited a poem she had posted there, according to the April 1 public reprimand (PDF) by the North Carolina Judicial Standards Commission.

The opinion says Terry and Shieck first discussed Facebook in chambers in the presence of the opposing lawyer in the case, Jessie Conley, who said she didn’t know what Facebook was and didn’t have time for it. After the discussion, Terry and Shieck friended each other. Shieck later posted a Facebook reference to the issue of whether his client had had an affair, saying “How do I prove a negative?” according to the opinion. Shieck also wrote, “I have a wise judge.”

Terry told Conley about Shieck’s posts the day after he read them. The same day during court proceedings he referenced the poem he found and posted a Facebook message that the case was in its last day of trial. After the hearing concluded, Terry disclosed to both parties that he had visited the website of Conley’s client, where he found the poem, and then disqualified himself at the request of Conley.

Terry told investigators the poem had suggested that Conley’s client was not as bitter as he first thought and had given him hope for the litigants’ children. He also cooperated in the investigation, the opinion says.

The opinion says the ex parte communications and the independent gathering of information indicated a disregard of the principles of judicial conduct.
 

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A client asks, I’ve maintained a relationship with my former partner’s child after our relationship ended, but I’m afraid that she’s going to cut me off. Is there anyway I can sue to keep the relationship I have with the child even though I’m not the biological parent?

I have four cases in my office right now pending in Dallas County with this exact issue. The Texas Family Code allows a lawsuit to be filed by a person who has had “actual care, control, and possession” of a child for at least 6 months ending not less than 90 days prior to the lawsuit being filed. There is much discussion going on in the court system right now about what constitutes “actual care, control and possession”. It is clear that “possession” does not mean uninterrupted periods, and does include periodic, alternating periods of possession. The current state of the law is unclear as to the meaning of “control” and there is much debate among judges as to what it means.

The law requires 6 months of possession, but it is unclear whether it means 6 months between the first period of “actual care, control and possession” and the last period, or whether the total of the periods of possession by the non-parent must aggregate (add up) to a total of 180 days. Regardless, the last possession period must not be less than 90-days prior to the day the lawsuit is filed. This means that a person who wants to solidify the relationship through a court order must not delay in filing suit.

I’ve had several clients come in with these problems, and each one delayed in seeking legal help. If you have a relationship with the child of a former partner, please do not delay in seeking advice from a lawyer about your situation. Consider confirming your relationship in a court order while the relationship with the other partner is good. If you have any questions about your status, please schedule a private, confidential consultation today.
 

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