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  • Brian Foley

Conroe Divorce Lawyer - Does the mom automatically get the kids in a Divorce?

One question I hear all the time is, "Does the mom automatically get the kids in a Divorce?" The answer to that question is no. There is no legal mechanism that prefers women to men in a decision about custody related to the children of a marriage.


In fact there is a provision of the family code that specifically forbids the Judge from discriminating on the basis of sex. If one party gets remarried later on and wants to change the custody arrangement, the same law forbids the Judge from awarding custody to the remarried parent on that basis alone.


It is also somewhat infrequent that a person is declared a "sole managing conservator." When people talk about custody, I generally hear the phrase, "primary custody." What this most likely refers to, is a joint managing conservator who has been granted the exclusive right to determine the primary residence of the child. The other rights are then divided independently, jointly, or exclusively between the parents. This means that either parent can make a decision (independently), both parents have to agree (jointly), or one parent has the exclusive right to make certain decisions (exclusively).




The standard by which custody and possession is granted is always "the best interest of the child."

The general policy written into the law is that "children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of [a] child[.]" Tex. Fam. Code Sec. 153.001


If you love and care for your children it will be difficult for any party to be awarded conservatorship or possession that severely limits your ability to be a part of your child's life.

Sec. 153.003.  NO DISCRIMINATION BASED ON SEX OR MARITAL STATUS.  The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:
(1)  which party to appoint as sole managing conservator;
(2)  whether to appoint a party as joint managing conservator;  and
(3)  the terms and conditions of conservatorship and possession of and access to the child.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Sec. 153.001.  PUBLIC POLICY.  (a)  The public policy of this state is to:
(1)  assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2)  provide a safe, stable, and nonviolent environment for the child;  and
(3)  encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
(b)  A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 1995, 74th Leg., ch. 751, Sec. 25, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 787, Sec. 2, eff. Sept. 1, 1999.
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