What Does the Court Consider When Determining Custody?

Custody fights are common. Typically the issue being fight over is about which parent will be the “primary” custodian—or person who gets to receive child support and determine the child’s primary residence.

Things that a Texas family court may consider when determining who should get “primary” custody include:

• Earning capacity and work history;
• Job schedule;
• Where each of the parents are living;
• Mental and physical abilities to care for the children;
• Criminal history;
• History of violence or abuse;
• History of drug usage;
• The age of the children involved;
• Which of the parents has been the primary caregiver in the past;
• The abilities of the parents to “get along” or cooperate.

It is not uncommon for men to assume that courts will give a preference to mothers. Texas family courts typically try very hard to focus on the child’s best interests without concern about the gender of the parent. So, while the mother tends to be awarded the “primary” conservatorship role more frequently, that is usually due to other factors and not necessarily because of gender.

When you leave the decision of custody to the judge, you are accepting the risk that the family law judge may not rule in your favor. Many family lawyers will encourage you to consider all of the risks before going to court in hopes that an agreement can be reached regarding custody. Family mediation is an excellent way to avoid the risks and costs associated with trial.