The Child Custody Case in North Texas

Child Custody F.A.Q.s
by Earl Jackson
Board Certified by the Texas Board of Legal Specialization.
Family Law

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In a child custody case, what is the difference between "primary" and "nonprimary?"

Is a child custody case "gender neutral," does a Dad have a chance? 

What impact does adultery or infidelity have upon the child custody case?

Will drug use/abuse, either prescription or illicit have an impact upon the child custody case?

What chance does the father have in getting custody?

May I Withhold Visitation because my Spouse will not pay child support?

May I Stop Paying Child Support because my Spouse will not give me my visitation and access?

If the case is settled, must I still go before a judge?

 

In a child custody case, what is the difference between "primary" and "nonprimary."

  • The Texas Standard possession order sets forth an almost 50/50 split custody arrangement wherein the children have a stable home during the school year and extended possession and access with the nonprimary parent during the summer. The Primary conservator has the right to designate the residence of the child within Dallas and contiguous counties and the right to receive child support. The primary may not move out of the child's home or contiguous county until the child is emancipated. If they do, the Court is likely to change the conservitor designation from the Primary Parent, i.e., the primary will become the nonprimary.

Is a child custody case "gender neutral," does a Dad have a chance? 

  • Under the Constitutions of the United States and the State of Texas, the Court may not or consider the gender of the party seeking the Primary designation in a custody determination. That is the law. That is not, however, the reality. In our society, it is mostly the men who are career oriented and job focused. It is mostly the women who are the nurturer or home maker. Even in the case of a professional woman, it is usually the mother who fulfills the traditional role of mom. This is not always true. It is just an unwritten  presumption that is carried into the Court. This is why, absent circumstance to the contrary or other facts, Mom is almost always designate primary.

What impact does adultery or infidelity have upon the child custody case?

  • This depends upon your judge and the factors involved. 

  • Frankly, it should not have much impact upon the custody proceeding at all.  Because a father had an affair does not make the father a bad father.  In that regard, a mother's affair likewise does not make that mother a bad mother.  But, if, for example, a mother who in all respects is a good mother involves her boyfriend in her child's life, especially, if she takes the approach that the new boyfriend is a better father than the biological Dad, this mother may very well find herself in deep trouble.

  • Each Court's approach to adultery is completely different depending upon the temperament of the judge, and the county in which the divorce is proceeding. The following bullet points describe possible scenarios - Judge Apple, Judge Ball and Judge Candy are fictitious.

  • Judge Apple does not care about an adultery issue because that which caused the adultery also caused the divorce. In other words, these people were not getting along (discord and conflict within the marriage) causes both adultery (one spouse seeks the companionship of another) and divorce (one spouse seeks out a lawyer).

  • Judge Ball hates adulterers, hates what it does to a marriage, and will immediately remove a child from the adulterer without further ado. The adulterer may be subject to limited possession and access.

  • Judge Candy takes a middle ground approach. She wants to know what the status of the marriage was prior to the adultery, whether the parties were separated (separate homes or bedrooms), and whether the adultery is the cause of the breakup of the marriage. If the adultery occurred sometime after separation, or during the divorce, she will not give much weight to it. If the adultery is the cause of the divorce, in other words the parties were happily married and had great plans prior to entry of the outside party, then she will attribute fault and rule in accordance.

  • In our experience, most judges fall into the Judge Candy category. That is, if marital discord and conflict was the status quo prior to the affair, then not a whole lot of weight will be given to it - especially, if the parties are separated and living apart prior to initiation of divorce proceedings. If all was well with the marriage but the adultery caused the marital discord and conflict, the judge may give great weight to it. They will protect the innocent spouse.

Will drug use/abuse, either prescription or illicit have an impact upon the child custody case?

  • Absolutely. You bet it will. Upon motion, or by suggestion in a temporary orders hearing the Court will immediately order drug testing by urine and hair. If drug use is found, the party seeking custody is likely to lose. Further, the Court may impose supervised or restricted possession and access upon this party.

  • The Jackson Law Group has handeled numerous cases where drug use was a factor.  In many of those, our client had the "problem."  There is a methodology that helps the addicted parent reunite with his or her children. The most important issue is - the using parent must address their issue and take steps to go sober.

What chance does the father have in getting custody?

  • Depends upon the facts and the proof available. The Jackson Law Group represents both mother's and father's in custody cases. As to the fathers, we look for some fact or circumstances that shows that the father was (a) the primary during the marriage, i.e., role reversal wherein Dad has filled the traditional role of mom; or (b) facts which show that Mom not fit to fulfill the role as primary. The Jackson Law Group has successfully  "won" the primary designation for several fathers in the past. In those circumstances wherein Father did not actually "win" primary, we were able to secure "split-custody" arrangement for father or additional possession and access time. We would like to be able to say that we won every father's custody case, but this is simply not true. If you are a father seeking custody of your child, we cannot guarantee the outcome of your case, each custody case must rest upon its own merits and the proof available.

May I Withhold Visitation because my Spouse will not pay child support?

  • No. Not ever. If you withhold visitation because a spouse will not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court.

May I Stop Paying Child Support because my Spouse will not give me my visitation and access?

  • No. Not ever. For the same reasons as in question one above, if you withhold child support because a spouse will not allow you to exercise your visitation you are taking the law into your own hands and may be held in contempt of court.

If the case is settled out of Court, must I still go before a judge?

  • Yes. Only the judge can grant the divorce. Once all the documents are in order, one of the parties will sign off on the divorce decree and the other party will go before the judge to “prove up” the divorce. The lawyer will ask you a number of questions which mostly require only a yes or no answer. The actual hearing takes only about 4 minutes. The time spent waiting for your turn, can be as long as 2 hours (usually about an hour, however).


The Jackson Law Group
Dallas Divorce Child Custoddy Lawyers
Practicing in Dallas, Collin, Denton, Tarrant, Kaufman Counties
214-369-7100


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