There is a common misconception that Mothers generally have greater rights to child custody than Fathers do. This isn’t the case. This misconception is rooted in the fact that, historically, courts often assumed that a mother would act as the primary caretaker of her children while the Father primarily worked outside of the home and focused on his career. This was the typical role of mothers and fathers in years past. For this reason, courts would often grant child custody to mothers more often than Father in decades past. Today, courts no longer make these assumptions about the role of mothers and Father. Instead, courts recognize that a child can be well taken care of by either a mother or father. As a result, fathers and mothers have equal legal rights to the custody of their children.
In determining child custody, courts in Texas are guided by the best interests of the child standard. Whether this means that a child is better off with a Mother or Father is considered on a case-by-case basis. There is a presumption that joint custody is in the best interest of the child or children so that the child or children can maintain a frequent and continuing relationship with both the Mother and Father. Although joint custody is preferred and is typical, it does not always happen. There are several factors a court will consider when determining custody.
Potential dangers to a child’s safety or wellbeing are always relevant to the question of child custody. For instance, if either parent is abusive or exposes a child to drugs or alcohol, it would be a major concern for a court. The availability of each parent to act as a caretaker is another major factor. As much as possible, courts try to ensure that a child is present with a parent, rather in childcare or daycare. The school and other resources available to the child when living with each parent are also relevant. For older children, a Judge may also ask the child where they would like to live and give the child’s preference consideration. Under the best interests of the child standard, it is not relevant to a court when weighing these factors which parent is the mother and which is the father. Either has an equal right to custody under Texas law.