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.
What is "gender neutral?" 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? 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
will 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. 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.
What
chance does the father have in getting custody? Depends upon the
facts and the proof available. Holmes, Woods, Diggs & Eames
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. Holmes, Woods, Diggs & Eames 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.
