Portrait of John K Grubb

Texas Divorce and Prenuptial Agreement

5005 Riverway Drive, Suite 450 • Houston, Texas 77056

Phone: 713-877-8800 • Fax: 713-877-1229

Should Physical Custody Go to Mothers or Fathers?

When it comes to working things out regarding your children come divorce time, the law has to make two decisions – one regarding legal custody and one regarding physical custody. In Texas, the custom regarding legal custody is to award it jointly, so that both spouses can make decisions regarding a child’s medical care and schooling. This is known as joint managing conservatorship.

Even though both spouses will have a say in decisions affecting their child’s life, the court will still have to make a decision regarding physical custody, and the preference remains for sole physical custody (that is, one parent will still be the custodial parent with whom the child lives most of the time).

Who gets sole physical custody of a child – mother or father?

Even though sole physical custody more often goes to a child’s mother, there is no law requiring this. In fact, the Texas Family Code specifically mentions that sex is not one of the factors for a judge to take into consideration when determining physical custody. The Texas Supreme Court has commented that there is no reason why a father should have to meet a higher burden of proof just because he is male. At least in theory, then, the idea is that a child’s best interests are priority number one, and the judge should make a custody determination without regard to a parent’s sex.

Nevertheless, many fathers only receive physical custody when the mothers of their child have been involved in some sort of illegal activity or have been abusing alcohol or drugs. In the absence of this type of conduct, it can be an uphill battle for fathers who, despite the Supreme Court’s words in the prior paragraph, do usually have to put on a more convincing case in order to persuade a judge to award them sole physical custody.

This is where a father should work closely with his attorney in pleading his case in a Texas family law court. Fathers need to marshal all of the evidence they can to show that they are the ones who should be responsible for raising their child.

Are you a father who has been involved in a dispute over child custody? Did you face an uphill battle to win physical custody of your children?

John K. Grubb & Associates, P.C. – Houston divorce attorneys

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