The Texas House of Representatives is currently considering a bill that could drastically change how the courts approach child custody. Specifically, the measure would mandate that unless extraordinary circumstances prevent it, divorcing mothers and fathers will be given equal possession time with their children.
We don't think it's a good idea. The combined experience of our law firm (well over 50 years) teaches us that equal possession time usually works for the children only when:
1) Both parents are equally invested and committed to sharing responsibilities;
2) The higher income parent is still willing to provide financial support; and
3) Both parents commit to live very near one another (often for many years).
This is why wise judges have rarely forced equal time possession on parents who did not agree.
The presumption of Texas law
This would represent a major change in how the courts treat custody and possession. At present, Texas law includes a presumption that the "standard possession order" (SPO) is in the best interest of the children. Many readers may be familiar with the SPO. In general, it provides for the parent who does not have primary possession to have the children on 1st, 3rd and 5th weekends, alternating holidays and 30 days in summer.
In its most expanded form (sometimes called expanded standard) the possession order gives that parent nearly 40% of the time, which is heavily weighted toward weekends, holidays and summer. It tends, in most cases, to work better for the kids. Judges can vary from it, of course, based on evidence.
If the new measure passes, it seems that a great deal of power would be stripped from the judges. The outcome - equal custody - would be presumed, and could only be changed if there is sufficient evidence regarding a parent's inability to provide proper care.
How an attorney can help you establish your parental rights
Proponents of the bill - House Bill 453 - believe it is a major step toward reducing courts' perceived bias toward mothers. ABC News reports that the initiative has gained the most public support from fathers who feel they are treated unfairly in custody matters. Indeed, a group consisting largely of men held a rally in support of HB 453 outside the Capitol in March.
There was a report that some "fathers' rights" advocate actually made a death threat against the Texas Family Law Foundation lobbyist who testified against the bill. Surely this was an individual or small group, not typical of the "fathers' rights" advocates, but it shows how crazy some of the legislative activity can be.
Our law firm is neither pro-father nor pro-mother. We are pro-child. With decades of experience, we advocate vigorously for the parent who is our client. We will not advocate for a parent in a manner which is abusive or clearly not seeking the best interest of the children. Most cases can and should be settled by agreement. We always discuss with our clients the long term benefits of an agreement, often reached in mediation or a collaborative law process. We also know that good settlements are reached when the other side sees we are ready and willing to go to court if necessary.
Strong legal advocates play such an important role in custody considerations. An effective lawyer can help responsible mothers and fathers establish their parental rights - and avoid, rather than instigate, rancorous and protracted legal battles.
The future remains unknown
The bill is currently being reviewed by the House's Juvenile Justice & Family Issues Committee. A vote may not be far off. A similar measure did not make it through the legislative session of 2015; whether the current proposal will passes remains to be seen. Regardless, its proponents will remain motivated and persistent.
Several other family law bills are pending before the Texas Legislature, some good, some bad. We hope to have an opportunity to write about them in the near future. It's not for those with weak stomachs; the old saying - the two things you never want to watch being made are sausage and legislation - still holds.