Nothing is more important than your child. When a couple with a child decides to split up, often the most gut wrenching issue is: who will have custody of the child?
Choose Your Attorney Carefully Child custody litigation is also the type of family law where an attorney makes the most difference. It is the most complex, difficult and vicious type of case. Not many attorneys are prepared or willing to go to the lengths necessary to maximize a client’s chances of victory. Make sure you choose one of the few who are.
Overview Courts first try to preserve the status quo. If you’ve got a situation with a stay-at-home mother and a father who works a great deal, then the Court is going to award primary custody to the mother – unless there is something else out there. That ‘something else’ might be substance abuse, family violence, a mental disorder or similar. Also, if the care is divided more equally, other factors will come into play, such as the quality of the care, future work requirements, etc.
What is ‘Custody’? Courts award a parent a variety of rights. The most important one, and what most people mean when they refer to ‘custody’ is the right to establish the primary residence of the child. Next in importance is the amount of time each parent gets with the child. Also important is the right to make medical, educational and other decisions. Lastly, one parent usually ends up having the right to collect child support from the other parent.
Father vs. Mother There is no preference under Texas family law for the woman (or man) to get custody. In fact, the law explicitly states that no preference is to be given to either. As a practical matter, though, most of the time the mother will end up with primary custody. Why? Because most families organize their lives this way, and Courts like to keep the status quo.
Judge vs. Jury You have a choice between having a Judge or Jury make the custody decision. Most people opt to have a Judge make this decision, usually because a Jury trial is much more expensive. My experience is that a Jury is more likely to award custody to a mother than a Judge, but each Judge is different.
Bad Facts These are the ‘game changers’ that can shift custody from one parent to the other. Substance abuse is the most common. Family violence is the most heavily punished under the law. Mental disorders are the most complex. All require an exceptionally tough and smart attorney on your side to take full advantage of, or to defend.
Witnesses The most effective component of a case is the testimony of witnesses. They vary greatly in value, but generally the most effective ones are those that are neutral (such as a neighbor) and are reluctant to testify. The testimony of your mother about what a great parent you are, and what a b*tch your wife is really of no value. I recall the one of the most devastating witnesses was a neighbor under subpoena (forced to testify) about the mother wandering the neighborhood in a Vicodin-induced haze. The neighbor was clearly terrified of the mother, but told the truth anyone. Dad probably won custody the moment she started to testify.
Splitting Up Children Children are sometimes, but rarely, split up. This is disfavored under the law, but not forbidden. Usually this occurs when the children are older. I’ve handled a few cases like this, but they are very rare.
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