Making the decision to divorce your spouse can be one of the hardest of a lifetime – especially when you still have minor children at home. For fathers worried about their ability to maintain a physical and emotional relationship with their children during and after divorce, the fear of an ‘every-other-weekend dad’ can often be strong enough to support staying in an unhappy marriage. However, a pending change to Texas law could provide some relief for fathers worried about their ability to gain equal custody. Texas House Bill 453, introduced by James White-R, seeks presumptively equal custody between both parents of minor children.
How will TX House Bill 453 change the way custody is decided during divorce?
Under the current family law system in Texas, if a divorcing couple is able to come to agreement on interim custody arrangements while a divorce is pending, the trial court will almost always accept this agreement without modification.
However, if you and your spouse are unable to agree on who should have custody, the matter will go before the court, which may order sole physical or legal custody to only one spouse. Because the inertia of the status quo can be a powerful force, the parent who is able to gain sole custody during the pendency of the divorce is often in the perfect position to advocate for sole managing conservatorship (or custody) on a permanent basis.
House Bill 453 proposes to mandate 50/50 custody in all divorce cases where the parties are unable to agree on proper custody arrangements. This can put both parties in a fairer bargaining position prior to the issuance of a permanent custody order, and can significantly decrease the odds that one parent (most commonly the father) will be relegated to non-custodial status.
What are some of the advantages and disadvantages of this proposed law?
Like any piece of legislation, HB 453 has both advantages and disadvantages.
One of the clearest advantages, particularly for fathers worried about their ability to gain custody during divorce, is the presumption that 50/50 custody is the ideal arrangement.
However, this presumption can often cut both ways. If your soon-to-be ex-spouse is engaging in behaviors that have you worried about the well-being of your children, you may have more of an uphill battle in proving this presumptive 50/50 custody isn’t in the best interests of your children. Although clear situations of abuse or neglect can still be dealt with on an emergency basis, removing judicial discretion can sometimes leave the court powerless to intervene in a situation that doesn’t rise to an emergency but clearly isn’t healthy for the children involved.
In addition, some detractors of HB 453 are protesting its impracticalness. What does life look like for a young child whose time is split down the middle between two homes? Many former spouses don’t wind up residing in the same neighborhood. How to accommodate for a full school year, as well as extracurricular activities, will be a challenge. The presumption of 50/50 custody may make it a fairer fight in family court, but many say that the reality of it is not quite so cut and dry.
If you’re preparing for divorce and want to ensure you’ll be able to maintain a relationship with your children both during and after the proceedings, your best bet is to contact an experienced family law attorney who can help you fight for your rights.