Do Texas custody laws favor Moms?

There’s a widespread perception among fathers going through a divorce in Texas that the law is biased in favor of moms. It isn’t. In fact, the Texas Family Code expressly prohibits courts from considering the marital status or gender of either parent in making custody determinations. See section 153.003 of the Texas Family Code. That being said, judges, like all human beings, bring biases and accumulated life experiences to the table when making custody decisions that can result in favoritism toward moms over dads (or, in rarer instances, vice versa). The perception of bias is especially pronounced where I practice family law in Austin, Texas because, as of the last election cycle, all the district judges in Travis County are female. Moreover, the factors that judges consider in making custody determinations certainly disfavor the parent who works outside of the home, which in many cases is still dad. A critical factor judges consider in deciding custody is which parent is the child’s primary caregiver—that is who is primarily caring the for the child during the day, taking the child to school or daycare, shuttling the child to extracurricular activities, preparing meals, scheduling playdates with other parents, attending parent child teacher conferences, and taking the child to doctor’s appointments. Thus, if you’re a dad working outside the home all day while mom is at home doing the bulk of the foregoing “caregiving” for the child, then mom is going to get primary custody even though you may “help” or “contribute” to your child’s caregiving needs. Incidentally, stay at home dads can similarly be advantaged in proving their role as the primary caregiver, although this arrangement is still relatively rare.

The “Standard” Texas Possession Schedule—Why Not 50-50?

Once the court determines which parent will have primary custody, or, to use the technical legal jargon—the exclusive right to determine the child’s primary residence—the court must determine the possession schedule. In Texas, it is presumed that the standard possession schedule (“SPO”) is in the child’s best interest. In other words, the law presumes that the SPO provides “enough” time for the noncustodial or “nonprimary” parent to maintain a meaningful relationship with the child. Further, it is worth noting that the difference between the SPO and a 50-50 schedule is only around 4 days per month. Yet, parents spend tens of thousands of dollars litigating this issue in their divorces. Why? Frankly, parental ego rather than the child’s best interest often drives requests for  50-50 schedules. Remember, it is the child’s best interest, not the parents’, that judges consider when determining visitation schedules. So here is the bottom line: regardless of your motivation for wanting a 50-50 schedule, it simply won’t happen with most judges! In the vast majority of cases, judges will order the SPO. There are exceptions, and this is why it is important to hire an experienced Austin Divorce Lawyer who knows the tendencies of various judges in Austin and surrounding areas. There are some judges who are more receptive to 50-50 schedules and other judges who almost never order them, regardless of how brilliant and masterful your lawyer is.

How to get a 50-50 possession schedule in Texas?

Did you not read what I just wrote? Obtaining a 50-50 visitation possession in Texas is exceedingly rare and improbable. Any lawyer who tells you otherwise is lying to you to get your money. Thousands of dollars later when you lose in court—which the unscrupulous lawyer knew all along was the likely outcome—the lawyer can just shrug it off and say “we tried”. Thus, the best and most common way to obtain a 50-50 schedule is if both parents agree to such a schedule. This happens more often than you might think. It is not uncommon in amicable divorces, particularly those involving older children, for the parents to agree on a 50-50 schedule.

But if an agreement is not in the offing, then my general rule of thumb in advising clients who want 50-50 is don’t ask for it unless you have a credible case for seeking primary custody. In other words, if a dad comes into my office wanting 50-50, my advice is don’t ask for it unless you have a legitimate case for seeking primary custody and putting mom on an SPO (or if the kids are at least 12 and will express to the judge a desire to live with dad). I say this because the division of labor in a household is rarely “50-50,” meaning I seldom encounter parents who split all child-care responsibilities 50-50, with one parent cooking 50% of the meals, taking the child to school 50% of the time, splitting doctor’s appointments 50% of the time, etc. But if that’s your situation, then ask for 50-50.

Work from Home

In the wake of covid, the work landscape has changed in a way that can advantage parents in custody litigation who now work remotely. One way to create a “toss up” scenario for the judge—ie, essentially back the judge into a corner and implicitly convey through the evidence “look judge, my wife and I really are sharing all the responsibilities so the only reason why you would give her primary is if you’re biased against dads”–is to work from home and truly share your child’s caregiving responsibilities.  In a scenario where both parents work from home, there’s no reason why dads can’t assume or at least share all the caregiving responsibilities. And if you aren’t doing this, you should start doing it well before you file for divorce. Changing your habits and level of involvement during or right before you file for divorce looks opportunistic and cynical.

Be Involved

Going to doctor’s appointments and cooking meals are important. But if you want primary custody or at least make a case for 50-50, then you need to do more. Don’t just attend you child’s soccer games. Consider being the coach. Don’t just attend parent teacher conferences. Try to establish a relationship with the teacher by communicating regularly about issues your child may be having in school. Don’t just attend your child’s birthday party. Plan it. Reach out to other parents to schedule playdates. In my experience moms often have an advantage in Austin custody battles because they show initiative in parenting and they sweat the details. They know the names of all the teachers. They know the pediatrician. They plan the parties. If the kid might need therapy, they’re the one vetting potential therapists.  Dads on the other hand too often fall into the role as the “fun parent” and pay less attention to the boring day to day details.

Don’t make it about child support

I agree. It is wrong and unfair. But some judges—and certainly your wife and her lawyer—believe the only reason you’re asking for 50-50 is to get a break on child support. It is unfair because if you do get 50-50, you should pay less in child support than you would under the standard schedule. And by the way, judges who order 50-50 schedules often do adjust child support downward or eliminate it altogether if both parents earn approximately the same amount. That being said, offering to pay the same amount of child support as you would under the standard schedule is a smart strategic move because it demonstrates to the Court that you’re motivated only by a desire to spend more time with your child and not paying less support.

If you have more questions about possession schedules in Texas, please check out my video and call me at 512-866-1131 or fill out my intake form and schedule a consultation today.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.