The decision to litigate the conservatorship of a child is one of the most important matters handled by this office. The outcome of a custody case can affect families for a lifetime. These cases are won by careful preparation, strong courtroom presentation and knowledge of the law.
The considerations which I focus upon in a custody case are as follows:
- Love and Affection
- Personal Responsibility
- Formal Education
- Leisure Time
- Religious, Moral and Ethical Leadership
- The Development of Values by Example
- Ulterior Motives
- Future Plans
- Goals and Ambitions
- Housing and Homemaking
- Social Abilities
- Prior Experience
- Temporary Orders
These considerations give me the basis for comparing the parties and their parenting abilities. Each category’s meaning is set out in the following pages.
Which parent provides the best kind and degree of love and affection for the child? For example, which seems to care most? Which parent do the children respond to more readily? Which parent seems more willing to make sacrifices for the good of the child or children, while at the same time appropriately encouraging their quest for independence? Which parent seems to enjoy the company of the children more and is better able to laugh and play with them constructively? The answers to these questions will have high priority on the list of considerations.
Which parent provides the most effective discipline of the child? Most people recognize that proper discipline is necessary for any person to achieve reasonable goals in life, and particularly for children. The setting of limits, and a system for enforcing them, is a basic requirement of parenting. For example, which parent has the best approach to curfews, and the best methods of enforcing them? A judge or a jury will know that the parent who doesn’t know where his or her child is and what he or she is doing is asking for serious trouble for that child and the parent as well.
By personal responsibility I mean essentially self-discipline. For example, which of the parents makes the greater effort to see that the child keeps his room clean, bed made, teeth brushed, clothes put away, etc. These are habits which are obviously not the most important in themselves, but indicate which parent is better equipping the child to take care of himself in the future. A sense of self-discipline is an extremely important cornerstone of personal development,and can begin at home in simple but effective ways.
Which parent is more committed to education? For example, which person helps with homework, attends conferences with teachers and encourages good grades? This category rates very high on the list of considerations. The judge or jury will no doubt feel some debt of gratitude to a parent or parents who encourage their child’s formal education.
Which parent encourages athletics, music lessons, Boy Scouts, and the like? Which seems more willing to make the sacrifices necessary to permit participation?
Leisure time is a powerful restorative, and a wonderful opportunity to develop special interests which formal education and extracurricular activities do not satisfy. It is also an opportunity for destructive influences to work. Supervision is important, as well as the availability of sources of enjoyment such as playmates, playground, or perhaps books, games and the like. Which of the parents can provide the best resources for the child in this regard?
Which parent seems more committed to appropriate and reasonable courses of training for the child in these matters? Home devotionals, nightly time for Bible stories and bedtime prayer, regular church attendance, Sunday school, and youth religious activities are indicative of the parent’s commitment to issues of faith and values.
Which person displays the better personal characteristics required for living respectable and responsibly and successfully in the world of the child’s future? For example, which parent demonstrates the best coping abilities, that is, who can best make a living and be a parent at the same time he or she is maintaining a happy or at least wholesome personal life? If a parent’s example is one of promiscuity, excessive drinking, or other lack of personal discipline, etc., the judge or jury will expect the child to develop similarly, even though these aspects of his parent’s life are not obvious to the child. It is difficult to conclude that a person’s problematical personal life will not affect the child, at least to some degree. In any even, juries tend to prefer the person who is generally more stable and wholesome, judged according to a rather traditional set of values.
If you are the mother, do you want the child for child support payments or other benefits, such as welfare or social security, which are available to the managing conservator? Or if you are the father, are you only being spiteful because of your failures as a husband? And don’t forget to look for the influences of third persons, such as grandmothers, who are through their own child seeking custody of their grandchild. In this regard, one always expects a grandmother to side with her child, so in deciding whether she has an ulterior motive, the judge or jury will look beyond this natural alignment with such questions as: who will keep the child while the parent is working, or who often has temporary visitation been conducted at grandmother’s?
Do they include planning for the care and upbringing of the child? Do they seem conducive to proper parenting? For example, is a parent planning to remarry? If so, how will the parent’s intended spouse stand up to the scrutiny of the jury? Do the parent’s plans represent a substantial departure from the way the parent has lived in the past?
Which parent displays the more appropriate desires for the future? And which seems to be the most able to accomplish their plan? A father going to night school four nights a week after work is to be applauded, but will he have sufficient time to be a parent? On the other hand, a fellow who can’t seem to keep a job won’t be a very good example to a youngster, particularly when compared to a hardworking mother who is getting ahead within the confines of nine to five job five days a week. She may be able to teach the youngster more about success and happiness in the real world than either of the fathers mentioned above.
Most people would think that mothers are cinch winners in this category. However, more often than not a custody case reveals mom to be a sloppy housekeeper. In any event, housekeeping is very important to youngsters, and to juries who are choosing between parents. As to the physical facilities, which of the parents will have adequate housing for the child after the verdict? For example, dad is going to have to be pretty bad, or mom is really going to have to shine in other categories, if all she has to offer by way of housing after the trial is a one-bedroom apartment in a singles complex.
Historically, one of the reasons that mother have been preferred as managing conservators is that they were available to care for the child or children all day long while father worked. Mother might still be preferred by juries for this reason (despite the instruction that sex shall not be considered) in a case where father makes enough that mother can stay in the home with the children and live on the child support and her share of the community property. But nowadays, with both parents working in most cases, juries are pressed into choosing not between mother and father’s day-care center, but literally between non-parent care providers in many cases. If mom wants her mother to care for the child during the day, and dad wants to leave the child with a day-care center, the jury is going to consider which is best perhaps using many of the criteria outlined for you herein. Judges or a jury will test the proposed day-care provider in exactly the same way as suggested for determining managing conservatorship. After all, eight hours a day, five days a week, is almost as long as parents’ time with the child after work and on weekends. For this reason alone, we can’t overlook the day-care provider as a very important influence on the child.
Which parent is more likely to be there when the child or children needs someone? Any physical presence alone won’t do it. Which will be more open and responsive to what the child needs, be it counsel and advice? The mom who prides herself on an extremely active social life loses in this category. Jobs that require travel are another basic consideration, as well as other activities which take a parent’s attention away from the children.
Which parent seems to be able to get along with others in work, play and other ways? Learning to get along is necessary to full development of the child. Once again, a happy medium seems to be preferred. Neither the social lion or lioness, nor the fellow who cannot keep a job can do well here. This category also includes such considerations as relations between child and elders, child and teacher, child and merchants, etc. Which party can better prepare the child to deal with those persons to whom he or she must relate in work, play, study, and all other areas of the child’s life?
Which of the parents has had most of the prior responsibility for the raising of this child? For example, if the child is emotionally unstable and lagging in development, and one of the parents has primarily been responsible heretofore for his or her upbringing, perhaps that party is to be avoided as a choice for managing conservator.
Were they agreed? If so, can this really be a serious custody dispute? If they were not agreed, how has the child fared under the temporary arrangement? If the mother was appointed temporary managing conservator, has the father taken every opportunity to visit? Has he fulfilled his support obligations? Same questions to the mother when the father has been the temporary managing conservator.
These categories are not exhaustive of the possibilities. In addition, some categories will overlap others in a particular case.