In Your Best Interest, Issue #20

We field questions about parental rights for fathers, day in and day out at our Fort Worth law firm. Dads ask us how to get 50-50 custody as a father, how can a father get joint custody, and how to win full custody as a father. All of these options are possible in Texas but your father's custody right outcome depends on you, your situation, and your legal strategy.

How custody and possession generally work in Texas

If you and your child’s other parent have separated or divorced, have agreed to share?child custody, and live within 50 miles of each other, the state now defaults (as a starting point) to what is known as the expanded standard possession order (ESPO), which is closer to 50/50 than Texas’ standard possession order (SPO), the previous default. This change went into effect on Sept. 1, 2021, with the passing of?S.B. No. 1936 in the Texas state legislature.

Parents can switch to an SPO, a 50/50, or another schedule if they prefer and agree to it. If parents don’t agree, the judge will make a decision on custody, visitation, and access based on what is in the best interest of the child—the primary concern in Texas family courts. (We’ll get into how to fight for your preferred father custody right outcome later.)

As explained in Texas Family Code Chapter 153, when parents enter into a joint managing conservatorship (or shared custody) under an ESPO or SPO, one parent is named the primary conservator and the other the managing conservator. The child then stays with one parent during their specified days and the other parent on their specified days. Each parent is responsible for certain parental rights and duties, which are hashed out during child custody negotiations.

Again, the best interests of the child are paramount in the Texas family courts. When determining which custody and visitation arrangement would be best for a child, judges also evaluate what both parents have been doing for the child, what their work schedules are like, when parents have days off and what financial resources each side has available.

What to do if you’re a father who wants primary or 50/50 custody

While mothers still manage to win primary custody more often than fathers, those tides are shifting, especially as more dads play an active role in their children’s lives. If you want and believe you deserve primary or 50/50 custody, you need to stand up for your rights and prove to the court that the father custody right outcome you want is in the best interest of your child.

This is true for both traditional male-female and same-sex parents. Our firm also helps mothers and fathers from same-sex marriages and relationships fight for their parental rights, even when our client isn’t the biological parent of their child.

In most cases, the judge will award primary conservatorship or custody to the parent who has been leading the charge in regard to parenting duties up to the present. And that personality type generally dictates the primary designation.

For example, say you have a type-A person who takes charge and goes and gets everything done. Conversely, the other parent acts as a listener and sounding board type. Who do you think makes the decisions for those two people? When it comes to forecasting whom courts choose as primary, it’s most often based on which parent has been steering the ship and making decisions up to that point.

So, if you want to win primary custody or get equal access and parental rights with a 50/50 custody agreement, the judge will need to see that you’ve already been acting in that capacity for a considerable amount of time.

How can a father get full custody in Texas?

My ears always perk up whenever I hear somebody say, “I want to totally restrict the other parent from access.” The first question out of my mouth is almost always, “Okay, what is your smoking gun?” That may sound blunt but that’s also the first question the court will want to be answered if you hope to end up being a father getting full custody (or mother getting full custody for that matter).

If you want to keep the other parent away from your child, you better have some really good reasons. When I ask that question out of the gate and your answer is something like, she (or he) smokes pot and didn’t put the car seat in that one time or she (or he) just doesn’t feed the child healthy vegetables all the time, you’re headed for a major uphill battle.

Now, say you do have a smoking gun—you can prove instances of family violence, alcohol or drug abuse, or other actions of the parent that pose a physical, mental or emotional danger to the child or that the other party is incarcerated—you may be able to get full custody.

Don’t have a smoking gun? Then you need to adjust your expectations. Again, the court is seeking a resolution that will be in the best interest of the child. Ideally, that means access to two loving parents who can successfully co-parent together.

Speaking of expectations, if you have a crazy work schedule that won’t allow you to be available for your child when they need you most (that includes daily care), it’s very unlikely a judge will award you full custody, especially if you don’t have that smoking gun.

And if not having to pay child support is the reason you want to get full custody or 50/50 custody, that reason won’t wash with me or the court. For one thing, that reason is not in the best interest of the child. Plus, the reality is even if you succeed at getting 50/50 custody, Texas child support laws require most parents to pay some amount of child support, especially higher wage earners.

Steps to take when seeking an advantageous father custody right outcome

So, you haven’t been Super Dad in the past or you’ve struggled to communicate and co-parent amicably with the other parent, huh? That doesn’t mean you can’t make a sincere effort to change, especially if you really want to win full, primary, or 50/50 custody of your children.

Here are three tips I share with clients when discussing a strategy for a custody case or modifying an existing custody order.

Tip No. 1: Follow the “Do Right Rule.”

Your behavior toward the other parent and ability to amicably co-parent speaks volumes to the judge. While it may be challenging to be nice to someone you despise, now is the time to bite your tongue and be cordial. That means be respectful, don’t send nasty texts or emails (those will show up as evidence in court), don’t gaslight the other parent, give the other parent a little wiggle room when needed, and so on.

The “Do Right Rule” also means cleaning up your act if you need to. If you have an alcohol or drug problem, I’m going to strongly advise you to get into a treatment program. If you struggle to hold your temper or suffer from mental health issues, you should proactively address those issues with a mental health professional as well.

Tip No. 2: Be the parent your kids deserve.

Along with cleaning up your act, you need to be 100% present and available for your child when they need you. Do all of those things the judge expects of a parent who wants to care for and make decisions for their child.

That requires you to show up on time, change diapers, shuttle kids to and from school, doctors visits and extracurriculars, attend sporting events and music recitals, help with homework, and make sure your kids are properly fed, clothed, and cared for in a home environment suitable to their needs and listen to and console them when needed. If your ex accuses you of turning into Super Dad, great—keep up the good work!

Tip No. 3: Give them the right, take away the power.

During custody negotiations, you and the other parent will need to decide who will be responsible for certain parental rights and duties, like education, medical and religious upbringing decisions to name a few. If your ex is adamant about being the parent who makes decisions about a certain right, you can take steps to restrict the power of that right.

For example, you could give the other parent the right to make educational decisions as long as the child attends school in a certain district, or give them the right to make medical decisions as long as the child sees a pediatrician you choose. There are a lot of flexible ways to deal with parental rights, and your attorney can explain the options available to you in your specific case.

By the way, if you’re someone who is wondering how to get 50-50 custody as a father, it will be important to include tiebreakers in your custody orders regarding who gets to make the final decision pertaining to specific parental rights and duties. You don’t want to end up back in court every time you and the other parent disagree about a medical treatment or which school your child should attend next semester.

Contact us to learn more about fathers' custodial rights in Texas

Whether you’re a father seeking sole custody or you have questions about minimum visitation rights fathers can expect in Texas, the Sisemore Law Firm’s experienced team of family lawyers is here to help. To schedule a confidential case review with our founder attorney Justin Sisemore, please call our Fort Worth law office at (817) 336-4444 or connect with us online.

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