A Texas family court will consider several facts when deciding which parent gets primary child custody. Domestic violence, no surprise, is one of the factors that will have a significant negative effect on a person’s eligibility to care for their for their children.
In its less severe form, a history of domestic violence can lead to limited visitation rights. More extreme cases, however, can even result in an automatic loss of parental rights.
This post will cover how Texas defines domestic violence and what you can expect if you are charged and want to retain custody of your kids.
Defining Domestic Violence Under Texas Law
Per The Texas Penal Code Title 5 Chapter 22 section 22.01, domestic violence is a form of an assault against family members, household members, and dating partners. Specifically, someone must causes, intend to cause, or threaten to cause harm, fear of immediate injury, or sexual assault to one of the above-mentioned individuals to be convicted of domestic violence in our state.
Importantly, domestic violence may be physical violence (e.g., beatings) or mental abuse (e.g., threats of imminent bodily injury).
The penalties for the offense range from Class C misdemeanor to first-degree felony.
Victims of domestic violence can also fill out a Protective Order Kit. This begins a process can grant them a protective order against their alleged abuser, preventing him or her from engaging in a variety of actions, such as contacting the alleged victim. In some cases, alleged abusers may be forced to leave their home and prevented from seeing their children or having limited, controlled access.
Where does child custody fit in to all this?
How Child Custody Decisions Are Made in Texas
When a Texas judge is establishing child custody orders, he or she takes into consideration which custody situation is best suited to fulfill a child’s physical and emotional needs.
When talking about child custody in Texas, it’s important to fully understand the following three legal terminologies:
- This term is used to refer to a parent’s legal right to make key decisions about the legal, educational, and financial upbringing of a child.
- This is a term that’s synonymous with custody (i.e., possession revolves around where a child lives).
- This term is synonymous with visitation (i.e., access deals with when a specific parent gets to see his or her child).
The general belief is that it’s essential to involve both parents in the upbringing of their child. Therefore, most courts in Texas order Joint Conservatorship, which means that both parents are involved in making crucial decisions about their children.
However, when a compelling situation exists to convince the court that one parent is unfit the court may order sole managing conservatorship. In other words, only the “fit” parent is allowed to make decisions regarding the child’s upbringing.
One of the factors that can make a parent “unfit” is a history of domestic violence. However, it’s not as simple as “get charged with domestic violence, lose your kids.” Your specific charges matter, as do other things.
Next, we’ll break those down.
How Does Domestic Violence Affect Custody Decisions in Texas?
The Texas Family Code Sec. 153.004 et seq compels the court to consider any evidence of intentional use of physical and sexual abuse within a 2-year period prior to the custody suit.
As such, the court may choose to withhold access to a child if a preponderance of the evidence indicates that a parent has a history of committing domestic violence during that two-year period.
Note the exact wording there. In a criminal trial, guilt must be proven beyond a “reasonable doubt” to secure a conviction. The bar is far lower with child custody, because “a preponderance of the evidence” essentially means that it seems more likely that you have a history of domestic violence than that you don’t.
Access may also be withheld if the court determines that the other parent became pregnant as a direct result of assault and abuse by the abusive parent.
Under Texas law, the court won’t make parents joint conservators if one parent has displayed a history of violence or abuse towards the other parent, child, or a spouse.
Nevertheless, a parent with a history of domestic violence may have his/her possession and access rights restored if it can be effectively argued to the court that:
- The physical, mental, and emotional health of the child will not be endangered in any way by the abusive parent’s visitation
- It’s in the child’s best interests that access or visitation rights of the abusive parent are restored
- There exists a visitation order which is designed to protect the child
- Visitation by the abusive parent is supervised, meaning that the abusive parent can never be alone with his/her child unless another designated adult is present
Sometimes the court will require the abusive parent to enter and complete a treatment program before reinstating his or her visitation rights. In most cases, parents deemed abusive will only have supervised visitations with the child until the court grants further access.
The Ending of All Parental Rights in Texas
While this is quite uncommon, a court may end all access to a child if it has reason to believe that the parent is extremely abusive and a danger to the child’s well-being. This may happen if the evidence before the court shows that the abusive parent has caused serious injuries to the child or if a parent has sexually assaulted a child.
Ultimately what all of this means is that you need to take it seriously if you have kids and are accused of domestic violence. While it is rare to completely lost your rights as a parent, even a mere charge or accusation can have a big impact on your relationship with your children, how and when you are allowed to see them, and what say you have in important life decisions.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth, making sure they receive the strongest possible defense when they find themselves on the wrong side of the law. He has been recognized for his work by The National Trial Lawyers, Fort Worth Magazine, and others.