In Texas, child custody determinations are based on factors that relate to the best interests of a child. In general, joint custody is considered to be the ideal custody arrangement for promoting the best interest of a child, unless other factors indicate that either the mother or father should get sole custody. However, this was not always the case. Historically, courts awarded custody to the mother under what was known as the “tender years doctrine.”
The Tender Years Doctrine
Under the tender years doctrine, a child’s mother was presumptively considered to be the best caretaker for a child who was four years old or under (the child’s “tender years”). However, the “best interest of the child” doctrine eventually replaced the tender years doctrine as the preeminent approach to child custody determinations. The multi-factor “best interest” approach allows judges to consider child custody on a case-by-case basis while shifting the central inquiry away from a gender-based evaluation for custody.
Overcoming Systemic Bias
Despite official measures to eliminate bias in custody determinations, gender bias still exists in practice. Although judges are supposed to restrict their evaluation of custody to the best interest factors, they sill have considerable discretion when applying the factors. For example, a judge might still consider the fact that a child spent more time with the mother during its infant and toddler years as an indication that the bond between mother and child is stronger. Therefore, the court could conclude that severing the mother-child bond would be contrary to the child’s best interest.
Unfortunately, systemic bias could lead to unfair results. Thus, fathers must make a significant effort to achieve a just outcome in a custody battle to ensure the welfare of their children. For example, one of our client’s at O’Neil Wysocki, P.C. had to wrestle custody of his child away from his mother using evidence of her lascivious behavior, which we collected from her social media accounts. Based on this evidence, the court ordered a drug test which the mother failed.
The fact that a court awarded the mother custody of the child in the first place, despite her inappropriate lifestyle, suggests a defect in the way the court initially determined custody in that case. It is important to remember that judges are still fallible, despite their best efforts to remain impartial. This is especially true when such bias was historically baked into the family law system.
So how can dads overcome such bias?
- Fathers should familiarize themselves with the best interest factors that courts use to make custody determinations.
- With those factors in mind, fathers can work closely with their attorneys to construct a record of the evidence that addresses each factor, whether it involves promoting their fitness for custody, or questioning the mother’s fitness if appropriate under the circumstances.
You Don’t Need to Fight Alone
If you are looking for advice about a contentious family law issue, call O’Neil Wysocki, P.C. We will use every tool at our disposal to make sure you and your family’s best interests are protected. You can count on our legal team to provide compassionate representing you and your family, driven by a results-oriented approach to legal advocacy.
For a consultation about your case, call O’Neil Wysocki, P.C. at (972) 852-8000 or contact us online today.