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Child Custody: Does the Mother have an Advantage in Texas Courts?

There is a common assumption in divorces that mothers have an advantage over fathers when it comes to arguing for child custody. Yet the Texas courts are legally obligated to avoid considering the gender of a parent when making decisions regarding custody. The courts are also not permitted to consider the gender of the children in correlation with the gender of the parents petitioning for custody. For example, if a couple is divorcing and have three boys, the court cannot assume that these three boys should go to the father because he is also a male.

Instead, Texas courts must consider all custody cases in light of the Holley factors. These are the factors that were laid out in a groundbreaking court case known as Holley vs. Adams which determined that the court should consider custody based on three qualifications. The courts are required to look at the ability of each parent to care for the child, and the ability to maintain a family relationship based on the custody that is chosen. As well, the courts are required to look at parental fitness. A parent that has a history of drug or alcohol abuse will normally be cast our as a candidate for custody because these habits may put children at-risk.

In the past, gender did play a significant role in the court's determination of which parent should get custody in a divorce. In fact, in the 1800's courts often abided by a "tender years" doctrine which advised that children should not be separated from their mother in the early years of their life. It wasn't until the 1970s that the Texas Family Law Code codified several laws implying that the courts are not are allowed to consider a parents' gender or that parent's marital status when working through a child custody implication. If you believe that the court is violating these statutes in your case, don't hesitate to call an attorney at the firm today for more information.