How Right-Wing Media Fueled The Wendy Davis “Lost Custody” Lie

Local reporting on Texas divorce law has finally put to rest the right-wing media smear that gubernatorial candidate Wendy Davis lost or gave up custody of her children, debunking this myth as the lie it always was.

Since she announced her candidacy for governor, national right-wing media figures have gone after Davis and scrutinized her parenting choices in a way no male candidate would ever have to confront. One nasty example has been Fox News contributor and RedState editor Erick Erickson, who has repeatedly referred to Davis as "Abortion Barbie," baselessly questioned her mental health on the basis of routine legal pleadings, and misrepresented the terms of her divorce settlement.

It was also the discredited Erickson who quickly jumped at the opportunity to help spread perhaps the most persistent myth about Davis -- that her ex-husband, Jeff Davis, "got custody" of her two daughters following their 2005 divorce decree. This falsehood was unfortunately started by the Dallas Morning News, whose January 18 profile of Davis was criticized for various reporting failures. Although the Dallas Morning News never corrected the language in the original piece, the reporter correctly described what actually happened in a later article, in accordance with the editor's online admission that the original version “left some readers perhaps too free to misinterpret the situation. We will print a clarification in tomorrow's newspaper.”

In short, Davis never lost or gave up custody of her children; rather, she was granted what's known under Texas law as "joint managing conservatorship" of her daughters. “Custody” isn't even the relevant legal term in Texas divorce proceedings.

By the time the Dallas Morning News mentioned Davis' joint conservatorship, the smear had already gained traction. Versions of the myth eventually cropped up in the New York Post (which claimed Davis “lost custody” of her daughters), (she “gave up custody”), and even Ann Coulter jumped into the fray, accusing Davis of telling “huge whoppers” and erroneously reporting that the Texas family court “awarded [Jeff Davis] full custody.”

Unlike the Dallas Morning News, right-wing media have yet to issue a “clarification,” let alone a much-needed correction and apology to Davis after their distortions about Davis' divorce raced from the fringes of the internet to Fox News. Davis herself expressly pointed this out in a recent speech, saying, “I never gave up custody of my children. I never lost custody of my children. And to say otherwise is an absolute lie.”

According to PolitiFact, who obtained a copy of Davis' divorce decree and custody arrangements, Davis' assertions are accurate (emphasis added):

At our request, Jack Sampson, a University of Texas law professor expert in family law, reviewed the decree, saying by phone that it shows Davis did not give up custody in the divorce. “She's a joint managing conservator,” he said, who agreed her daughter would primarily live in the family home with her father.

By email, Fort Worth lawyer Chris Nickelson, said that the divorce order shows Davis “was appointed a joint managing conservator and was given possession and access to her daughter. She therefore shared joint custody with Jeff.” Similarly, Austin lawyer Jimmy Vaught, chair-elect of the Family Law Section of the State Bar of Texas, said the decree shows the senator and her husband having the same parental rights and duties except for control over where the daughter lives.

Asked if making the family home where Jeff Davis lived Dru Davis' primary home constituted the father gaining greater custody, Nickelson replied: “There will always be a group who perceives having the right to determine the primary residence means you have 'custody.' But that is not true under Texas law.” He added: “Non-lawyers often think that if one person has more rights or more possession time than the other person, then it means they have custody while the other does not. Despite family lawyers' best efforts, we have never been able to beat this idea out of people's heads.”

Sampson and Nickelson each said the letters to Wilder in the county records reflected only on the senator not being her youngest daughter's primary caretaker and being ordered, as agreed, to pay child support for about the last half year of Dru Davis' years as a minor. Both lawyers said the letters do not mean Davis gave up custody.


Custody, it turns out, is an outdated term for what has evolved into “managing conservatorship.” And in the senator's divorce, she and her ex-husband agreed to joint managing conservatorship, which means that neither parent sacrificed custody. That said, her ex-husband's home was designated as their daughter Dru's primary residence in the divorce decree and Davis agreed to make child-support payments.

Outside of the legal process, it's not uncommon for the parent who's not the primary caregiver to be considered noncustodial, which may explain why the candidate described herself this way less than five months ago. Still, it would be incorrect to say she legally relinquished her parental role.

As discussion of Wendy Davis once again enters the national conversation with the publication of a profile in The New York Times Magazine, it is important that all outlets remember that lies doggedly debunked in Texas are still lies everywhere else. 

Photo via Flickr/The Texas Tribune under a Creative Commons License