When it comes to determining child custody, the issue of domestic violence in the home is an extremely important one.
The State of Texas does not require the petitioner to prove that he or she has factual “grounds” for a divorce. However when minor children are involved, and the petitioner wants to prevent the other party from receiving what would be the default in custody, facts surrounding domestic abuse in the home must be proven.
Custody Basics
While the term ‘custody’ is being mentioned in this article, when it actually comes to children in a domestic relation proceeding, ‘conservatorship of the child’ is the term used to handle custody. Further, ‘possession’ and ‘access’ are synonymous with ‘custody’ and ‘visitation’.
When a parent is given conservatorship of a child, it means that the parent has the legal right to make the decisions that are important to the child, including decisions on the legal, financial, and educational upbringing of the minor.
Possession refers to where the child will live, and access involves when the parent will see the child.
When the court orders that only one parent is allowed to make decisions regarding the child, this situation is referred to as a Sole Managing Conservatorship. However, when parents equally share in the rights and responsibilities involving the child, this situation is referred to as Joint Conservatorship.
In most situations, Joint Conservatorship is the norm, as it is a commonly-held belief that both parents need to be involved in a child’s life. However, courts will order Sole Managing Conservatorships when a compelling situation exists. Domestic violence in the homes is one of those situations.
Domestic Violence In The Relationship
Under the Texas Family Code Sec. 153.004 et seq, the court shall consider evidence of any intentional use of abusive physical force or evidence of sexual abuse by a party directed against that party’s spouse, a parent of the child or any other person under the age of 18 years committed within a two-year period before the filing of the custody suit.
In fact, the court may not allow a parent to have access to a child if a preponderance of the evidence shows that:
1) There is a history or pattern of committing family violence during the two years before the date of the filing of the law suit; or
2) The parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021 or 25.02 of the Penal Code, and as a direct result of the abusive conduct, the other party becomes pregnant with the parent’s child.
Essentially, Texas Law makes it very clear that, if a history of domestic violence exists in the home, the court will consider this evidence and it will have an impact on custodial determinations.
Protective Orders
If the abuse has gotten to the point where the victim feels that his or her life is in danger as well as the child’s life, the victim may need to get a protective order to protect himself or herself and the child or children.
If the parent has shown a pattern of abuse, the protective order can protect all parties involved. Also, if custody has not been decided, a protective order can be issued easily and this will affect access the noncustodial parent has to his or her child for the immediate future.
Impact Of Domestic Violence On Possession And Access Decisions
As stated previously, joint conservatorship is the norm when it comes to possession and access decisions.
However, evidence presented by the party who is seeking sole conservatorship showing that the other side was violent and abusive certainly can affect the judge’s decision to order that joint conservatorship not be ordered.
Many of these reasons include concern that the child’s physical or emotional health would be put in danger if the abusive parent had access or visitation with the child. The best interests standard also comes into play when making these determinations.
In extreme situations, the courts may require the parent to undergo a treatment program while having only supervised visitation with the child until the court orders further access be granted. If the situation is particular extreme, albeit rare, the court may end all access to the child.
Contact A Custody Lawyer At Scott M. Brown & Associates Today
To discuss how custody would work for your situation that involves domestic violence, please contact the family lawyers at Scott M. Brown and Associates. You can reach us by calling 281-972-4386. We have offices in Angleton, Houston, and Pearland.
