DO TEXAS COURTS FAVOR MOTHERS IN CHILD CUSTODY DISPUTES? MY HUMBLE OPINION.
- Texas Attorney Ryan Putz
- Mar 24, 2023
- 8 min read
The notion that Texas family courts have a bias when determining child custody is something I hear way too often, and interestingly, I only hear it from dads. Are dads not getting a fair shake in their custody battles for their children? It seems that the overwhelming answer to this question, according to my research on the topic, is that courts in Texas do not favor mothers in custody disputes. I DISAGREE, in part.
I want to point out that section 153.003 of the Texas Family Code expressly prohibits considering the sex of the parties, and provides as follows:
“The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
…the terms and conditions of conservatorship and possession of and access to the child.”
Additionally, section 153.254 of the Texas Family Code does not expressly refer to sex or gender of the parties, and provides as follows:
“(a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:
(1) the caregiving provided to the child before and during the current suit;
(2) the effect on the child that may result from separation from either party;
(3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;
(4) the physical, medical, behavioral, and developmental needs of the child;
(5) the physical, medical, emotional, economic, and social conditions of the parties;
(6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;
(7) the presence of siblings during periods of possession;
(8) the child's need to develop healthy attachments to both parents;
(9) the child's need for continuity of routine;
(10) the location and proximity of the residences of the parties;
(11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
(A) the age of the child; or
(B) minimal or inconsistent contact with the child by a party;
(12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and
(13) any other evidence of the best interest of the child.
(b) Repealed by Acts 2017, 85th Leg., ch. 421 (S.B. 1237), § 12(1).
(c) Repealed by Acts 2017, 85th Leg., ch. 421 (S.B. 1237), § 12(1).
(d) The court shall render a prospective order to take effect on the child's third
birthday, which presumptively will be the standard possession order. “
However, as I will discuss below, there is an implicit bias that favors mothers in child custody disputes through the practical application of section 153.254 of the Texas Family Code by family law attorneys and mediators.
THE ORIGIN OF THE TENDER YEARS DOCTRINE AND HISTORY OF BIAS
America’s legal code and principles are rooted in British law, so to properly understand how this provision came to be, let’s look at its origin and history.
Caroline Norton was a 19th century, prominent British feminist, journalist, and social reformer author. Norton initially proposed the notion that women should be given custody of their children in the event of divorce. Norton herself went through a divorce where she was not awarded custody of the children. Norton, through persistent lobbying and use of her influence, successfully convinced the British Parliament to pass a law that protects mothers’ rights. This legislative enactment came in the form of the Custody of Infants Act of 1839. The Act gave a certain level of discretion to judges during proceedings in child custody cases and initiated the presumption of maternal custody for young children (the age of seven and under and extended by the British Parliament in 1873 to the age of 16).
Prior to the 1980’s, and just like the Custody of Infants Act of 1839, there was a doctrine known as the “tender years doctrine” that was common law applied in courts through the United States. This doctrine essentially directed a judge to award custody to the mother unless there was substantial evidence showing the mother was not fit to care for the child.
This doctrine was abolished by many states after it was found unconstitutional and a violation of the equal protection clause of the Fourteenth Amendment of the U.S. Constitution. Since the time this doctrine was abolished, many courts, including Texas courts, began applying “the best interest of the child” principle as the primary consideration when determining custody.
TYPES OF CASES AFFECTED BY SECTION 153.254
It is important to understand the two types of cases where section 153.254 may get brought into play. It may come up in a divorce with children case, but it is most often seen in an original suit affecting the parent-child relationship (when the parties have a child together but are not married). The reason for this is that a child born of the marriage is often times above the age of 3 years by the time of a divorce proceeding, and if not, many of the factors under section 153.254 are mitigated due to the nature of a marriage relationship. On the other hand, an original suit affecting the parent-child relationship is more likely to be affected by section 153.254 because there is greater probability the case involves a child less than 3 years of age due to a number of factors surrounding the party’s relationship status. This article is not going to dive into these factors at depth, but this has been my experience.
Now if you look at the factors set forth in section 153.254 that a court must consider when a child is less than 3 years of age, one can make the inference that these factors tend to favor the mother in original suits affecting the parent-child relationship, given the fact that the mother birthed the child, and without any assumption of paternity (as there would be in a marriage relationship), the mother is likely to have maintained possession of the child since the time of birth and/or had control of any possession schedule that afforded dad any visitation and access to the child. Looking at the first factor alone, it should be obvious how this tends to favor the mother. Additionally, if you look at the last factor I highlighted, the court presumptively orders a standard possession order to take effect upon the child turning three years of age. Presuming this is dad (see what I did there), dad has an uphill battle, and a financially burdensome one, in order to modify the custody arrangements over the course of the next 15 years, or until the child is no longer subject to the court’s jurisdiction.
IT'S NOT THE COURT, PER SE, SHOWING FAVORITISM
Mediation is required prior to a temporary order hearing or final orders hearing by many family law courts in Texas, including Harris County and Montgomery County. Most family law and child custody cases will not be decided by the court, rather the cases are settled by agreement through settlement processes like mediation. A parent’s final custody orders are, more likely than not, based on their experience at mediation. In my experience, mediation and settlement processes are where it is all too easy for an attorney or mediator to point to this provision of the code, throw their hands up in the air, and tell clients that the code is what it is without understanding how the actual application of the provision plays out inside the courtroom. The reason I believe there is an implicit bias when section 153.254 is asserted is based on my own experiences as well as other attorneys use and application of the provision.
For example, I do not recall a single instance of when I represented a dad and asserted section 153.254 of the Texas Family Code, and thus I am typically in a defensive position when dealing with this provision. On the other hand, when representing mom, I am quick to assert and apply that provision and use the provision as part of my case in chief. Thus, it is fair to say that my own application of the provision is biased from an objective standpoint. My purpose behind its use and application is to work in my client’s best interest, and in my experience, this is when I represent the mother. This has also been my experience with the use of the provision by other attorneys. Hmmm, why would that be???? There is an implicit bias favoring mom when attorneys use and assert this provision.
STORY TIME
To illustrate my point regarding why I do not believe the courts, per se, favor mom, I will share an experience I had representing a mother at a temporary order hearing. This was not a divorce proceeding, it was an original suit affecting the parent-child relationship. The child subject of this suit was just 1-month old. This was dad’s first child, but mom had children prior to this one. Mom and dad were not living together and were no longer in a dating relationship. Naturally, I asserted section 153.254 of the Texas Family Code, the child was only 1-month old, and I was representing mom. We argued that dad’s visitation should be supervised for a limited period of time because of the child’s age; that this was dad’s first child and there was a learning curve, there were nursing requirements such as breastfeeding; and for reasons pertaining to attachment. The judge, who I greatly respect, poignantly pointed out that he did not recall an instruction manual given to him when his first child was born. Kiddingly, whenever I am in that judge’s court, I now ask the parent if they were given an instruction manual when their child was born.
In this example, the judge did not give much weight to the factors under section 153.254, and did not order supervised visitation, but did properly restrict dad’s possession and access (given the age of the child and the fact that the orders were temporary). Dad was awarded short but frequent visitation periods (several hours per visit on 3 days of the week). This case was settled on final orders at mediation, but it goes to show that the court, per se, does not show bias, rather it is the attorneys (in this case, me) and the application of the provision itself that tends to create the implicit bias in favor of mothers.
WHEN THE BEST INTEREST OF THE CHILD JUST ISNT BROAD ENOUGH.
The primary consideration given to child custody determinations in Texas courts is the best interest of the child. That’s a pretty good “catch all” that allows a court broad discretion to factor in just about any evidence relating to the parent-child relationship when determining conservatorship and possession and access, including many of the factors provided under section 153.254. So, it leaves one to wonder what the purpose of section 153.254 is really about, and is it even necessary?
Now don’t get me wrong, I am not opposed to Texas courts showing favor to mom when a child is an infant, or when good cause exists in accordance with reliable expert studies. However, any orders of this kind should be temporary in nature and should not be considered on any final order. I am not in favor of presumptively ordering a standard possession order when a child turns an arbitrary age such as three, or covertly placing a burden on dad to show mom is an unfit parent. This can all be accomplished by simply applying the best interest of the child standard. Section 153.254 is unnecessary, antiquated, poses undue financial burdens on the parents, and tends to place dad in a position of weakness from the onset of his child’s birth. Let’s call section 153.254 what it is, a provision that allows covert favoritism without contradicting prior legislative provisions such as section 153.003, and the existence of this provision demonstrates an implicit bias that tends to favor mothers in child custody cases, especially original suits affecting the parent-child relationship.
Do not wait until it is too late, schedule your consultation for your divorce or family law matter today. Contact the Law Office of Ryan Putz and get the representation you need and deserve!
PHONE: (281) 206-2696
EMAIL: ryanputzlaw@gmail.com
Houston and Harris County | The Woodlands and Montgomery County | Pearland and Brazoria County | Sugar Land and Fort Bend County | League City and Galveston County
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