Can CPS Remove Your Child from YOU Because of What The Other Parent Has Done?

Child Protection Services (CPS) exists, and is often needed, to protect children from abuse or neglect. When it is not safe for a child to live with a parent, then we, as a society, need to have the ability to protect those children, by removing them from their homes, and placing them somewhere safe. That is our law. When only parent is the problem, however, the application of that law to the innocent parent can be unfair.

As background to the problem, Texas law provides that when CPS removes a child from a parent, either with or without a court order , the child’s parents are entitled to appear before the court to contest that removal (usually within 14 days of the removal). This proceeding is called an “Adversary Hearing.” If, after the Adversary hearing is conducted, the court upholds the removal of the child, then that court will typically order the parents to participate in, and complete, certain specific services related to the reason that the child was removed; like counseling, drug and alcohol assessments, psychological evaluations, random drug testing, parenting classes, and so on.

A problem can arise when the court upholds the removal of the child, but only one parent is responsible for that removal. Texas law allows the court to order both parents, including the “non-offending”(innocent) parent to complete services, like those discussed above. In my experience, that is what usually happens after an Adversary Hearing. Importantly, if either parent fails to complete those services, then the court could terminate that parent’s parental rights, even if that parent is innocent and was not at all responsible for the child’s unsafe environment. So, if, for example, Mom is using drugs with her boyfriend in the home with the children, and CPS receives a report about that circumstance, CPS can remove the children from Mom’s home; the court can uphold that removal, and order both Mom and Dad (who was not using drugs) to complete a list of services. If Dad is unable to work his schedule so that he can spend four (4) hours with a psychologist being evaluated; attend counseling, submit to random drug tests, and so on, then the court could terminate his rights to his kids; even though he is a non-offending (innocent) parent.

Because of this problem, there was a bill proposed in the Texas house of Representatives, during 2019: the Child Trauma Prevention Act (House Bill 3331), which would have addressed this situation. Unfortunately, that bill did not become law. Consequently, the problem described in this article still exists, as of the time of this writing. Anyone interested in working to address this situation should contact” their representatives in the Texas House of Representatives, and Texas Senate; the Texas Home School Coalition Association; or, the Texas Public Policy Foundation (TPPF).


1 In an emergency situation, CPS can remove children from an unsafe place before presenting evidence to a court to obtain an Order authorizing the removal. Otherwise, a court order is required prior to removal.
2 By finding that “there was a danger to the physical health or safety of the child…which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child” TFC  262.201 (g) (1); also, that “the urgent need for protection required the immediate removal of the child and reasonable efforts , consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal; and” TFC  262.201 (g) (2) “reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.” TFC  262.201 (g) (3).
3 The bill passed the House committee with no witnesses testifying against it. However, the bill died in the House Calendars Committee because an unknown member of the committee stalled the bill until it died on a deadline.

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Parenting A Child With A High Conflict Ex (Part 3)

When a romantic relationship ends, whether by divorce or otherwise, parents often find that their residual emotions spill over into their dealings with one another as they try to work together to parent their children. This can, obviously, pose difficulties in a shared child custody arrangement. We have previously discussed techniques which you can use to mitigate conflict when attempting to co-parent with someone who cannot, or will not, treat you politely and with respect. A review of those articles (Part 1 and Part 2 of this series) will give context to the information which we are discussing today.

One of the recommended techniques to resolve this conflict is putting in place (ahead of time) a method for resolving parenting disagreements outside of court. That way, disagreements can be resolved relatively quickly, easily, and inexpensively. To be successful, that method must consider, and be respectful of, each parent’s, thoughts, views, and wishes about the decision to be made. It can, then, be supported by the court, if challenged by a disgruntled parent who thinks that he or she should be able to unilaterally make decisions about the child or children.

Examples of decisions which parents might disagree about are educational decisions, such as whether to “hold a child back” in a particular grade for a school year; whether to enroll the child in Advanced classes; which electives a child will take; or, whether to have your child “skip” a grade. Other examples are medical decisions, such as whether to have a child start taking medication, say for ADHD or clinical depression; or to start counseling, or undergo surgery or other medical treatment.

One effective dispute resolution method involves writing into the court order a “tie-breaking” procedure, whereby the parents would present their disagreement to someone whom they have previously agreed is a logical person to weigh-in on the matter at hand. The parents might agree, for example, that if they cannot agree on one or more educational decisions for their child, they will allow the child’s school Principal to cast the tie-breaking vote on the decision, after conferring with the child’s teacher, counselor, nurse, or other personnel relevant to that decision.

Similarly, for medical decisions, the parents might agree in advance, or the judge may order, that the child’s Primary Care Physician will cast the tie-breaking vote regarding these decisions. The doctor would first consult with the child, each parent, and any other relevant healthcare professional (such as a medical specialist), prior to making the decision.

Those professional people casting the tie-breaking votes presumably have the child’s best interests at heart. And, they can look at these decisions through their professional education, training, and experiences, without having to wade through the emotional baggage between the parents. Ideally, this process results in a high likelihood that a reasonable decision will be made for your child.

We have been using these types of tie-breaking procedures for our clients since the 1990’s. Over those many years, we have found that these types of tools often keep high- conflict parents from getting “stuck” when trying to make those important decisions for their child which will, inevitably, arise from time-to-time; and, doing so, without our clients having to rehire us to go back to court over the decision.

When a disagreement on a parenting decision occurs, having a process in place which allows a dispassionate professional person to assist in the decision-making, allows stability for the child to occur.

 We appreciate your attention to this article,and would welcome any questions or comments about it which you may wish to send to us from this website. That is all for now. Plan for potential problems with co-parenting, so that you can keep doing what is the very best for your kids!

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Parenting A Child With A High Conflict Ex (Part 2)

As mentioned in this prior article, reducing the contact and communication between parents who highly-conflict with one another is usually beneficial for a child or children, everything else being equal. One of the effects of these reductions, however, is that “regular” co-parenting will not work. These parents will, instead, “Parallel Parent” their child or children.

According to Edward Kruk, Ph.D., “Parallel parenting is an arrangement in which divorced parents are able to co-parent by means of disengaging from each other, and having limited direct contact, in situations where one or both may have demonstrated that they are unable to communicate with each other in a respectful manner.” What this means is that these parents will not seek input from one another on parenting issues, in order to make consistent rules and policies for the child. Instead, each will parent as he or she sees fit during their respective periods of possession of the child. So, the rules and expectations for children when they are with Mom, will likely be different from those when they are with Dad.

The goal of this arrangement is to protect the children from being in the middle of ongoing disagreements and hostilities, while preserving their relationships with both parents. Conflict is reduced. And, the child is able to benefit from, and enjoy, respectful relationships with each parent.

On some matters, such as educational and medical decisions, the input of both parents is ideal, even when they are Parallel Parenting. The communications related to those decisions are usually made in writing, and exchanged by approved means, such as via Our Family Wizard. The discussions should remain factual and on topic; with neither parent attacking the other one, nor questioning the motives or decision-making abilities of the other parent.

From my experience, however, when the high-conflict includes some degree of attempted Parental Alienation, or on-going Family Violence, parents are typically unable to make even these important decisions for their children in a respectful manner. In those cases, it is better if either one (1) parent is assigned to each of the decisions to be made (it may be the same parent for all decisions, or they may be split between the parents, in some manner); or, a tie-breaking system (which I intend to discuss in more depth in a later blog post) is implemented. In cases where one (1) parent makes decisions, after those decisions are made, the parent who made the decision will be ordered to timely notify the other parent of the decision, within a specified time frame.

Parents who use Parallel Parenting rarely need to ever see one another outside of their children’s school or extracurricular activities. Exchanges are typically done by dropping-off the child at school (or daycare), when in session; and, at some other public place, without speaking to one another, when not in session. When one parent drops-off a child at school or daycare in the morning, and the other picks-up that child in the afternoon or evening, these parents don’t have to even encounter one another. And, when exchanges are done in silence, at a public place, their contact with one another is intentionally brief. With other people around, the likelihood of conflict occurring between the parents is significantly reduced.

As the divorce or other separation of the parents from one another becomes less recent, many parents find that they are able to interact respectfully with one another. And so, in those instances, the strict procedures for interactions and communications with one another become less necessary. But, for some parents, the intensity of the conflict remains; as if, one or both of these parents has decided to make fighting with the other parent, a theme of their remaining years on this planet (This seems to often be the case with narcissists, psychopaths, Machiavellians, and sadists—the so-called “Dark Triad.”) With these parents, the Parallel Parenting can continue until the children are adults.

Children deserve to be loved, protected, and nurtured. They, also, deserve to have quality relationships with both of their parents, so long as each parent can move beyond any emotion lingering from the divorce or other break-up, and can parent in a manner that is in the best interest of their child(ren). For some adults, Parallel Parenting provides a reasonable choice to allow those things to happen.

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Dealing with a High-Conflict Ex (Step 1)

It is well established that healthy parents provide stability to their families. As children grow, learn, and work to figure-out how to be and thrive in this world, they derive security from parental love, support and protection. That security allows them to develop as they should. And, even if their parents do not live together, children tend to thrive if they feel that both parents are still there for them.

On the other hand, we know from numerous studies that Parental Conflict can be a source of continual pain for our children — whether the parents are married or divorced. According to Larry M. Friedberg, Ph.D., “enduring conflict between divorcing parents is one the most significant risk factors for children of divorce.” And, such conflict, which may include one or more incidences of domestic violence, is considerably more likely to occur at or near the time of divorce.

As you might expect, in most of those cases, the conflict significantly declines during the 1 to 3 years immediately after divorce or separation. But, according to Judith Wallerstein, Ph.D., in a surprisingly large percentage of those case (10-25%), conflict remains elevated even after 3 years have lapsed since the divorce or separation occurred. The kids in those families are the ones at greater risk. The first step in working effectively with them is the topic of this writing. Other steps will be discussed in later posts.

It used to be thought that shared parenting was harmful to children when there was on-going high-conflict between the children’s parents. The yelling, name-calling, and unfriendly behaviors between the parents traumatize the children, to a greater or lesser extent, each time that they are experienced. Edward Kruk, Ph.D. notes, however, that recent observations of high-conflict families reveals that reducing the contacts that each parent has with the other one reduces negative effects experienced by their children. And, with that negativity reduced, children often benefit from shared parenting.

Accordingly, parental contact with children should not be reduced simply because there exists high-conflict between those children’s parents. In fact, everything else being equal, such contact is usually beneficial to children. Rather, the contact between the parents should be reduced and/or regulated. One example of this is having exchanges of the child occur at the child’s school, daycare facility, or other neutral, public place. Another one is having the court Order that all communications between the parents (except in the case of an emergency) occur only via court-ordered means, such as via Our Family Wizard—a program which allows the court to easily review those communications, if requested by a parent to do so).

Importantly, those ideas do not apply where there is more than merely high-conflict occurring, such as where there is violence (used or threatened against a parent), or when Parental Alienation is occurring. Both of those occurrences are treated as child abuse. In those cases, other measures are typically called for. I have written on Parental Alienation and Legal Protections Available for Family Violence. Neither of those should be dismissed nor minimized, since each of them can have devastating impacts on children, as well as the victimized parents.

Children need to have relationships with two healthy parents. Barring that, they, at least, need to be protected from unhealthy interactions between their parents.

 In our next post, we will discuss other beneficial steps to take when dealing with a high-conflict parent.

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Legal Protections Available for Family Violence

Last month, we started this conversation by discussing the Court Orders that are immediately available to victims of Family Violence; some, even before the Protective Order case has been filed. Those orders are designed to offer legal protection to victims right away, before there is time for proper notice and a hearing to occur. This is, obviously, very important, so all of that information is available here. With those immediate protections in place, we can now look to what happens next.

Starting the Protective Order Case

The case is initiated by the filing of an Application for Protective Order (by or for “the applicant’). Upon that filing, a Temporary Ex Parte Protective Order can be requested to offer immediate protection to the applicant; and, the Court is required to schedule an evidentiary hearing. In most Texas counties, that hearing must be set to occur within fourteen (14) days of the filing of the Application for Protective Order. In very large, or very rural counties, however, that hearing can be scheduled to occur as many as twenty (20) days after the Application is filed. Importantly, if obtained, the Temporary Ex Parte Protective Order should be in effect up to the date of the hearing.

The Protective Order Hearing

The Protective Order hearing is a trial. As such, the parties, and any other witnesses, can be called to provide testimony. That testimony will be about the allegations made within the Application for Protective Order filed by the applicant. Importantly, any witness called to testify at the hearing may be cross-examined by any other party to the case. And, usually, the witnesses will not be allowed to hear the testimony of the other witnesses, nor to discuss testimony with other witnesses, so that their respective testimonies will not be influenced by what they would hear other witnesses testify to at the hearing (at least, that will be the case if your lawyer makes a proper request to the court for sequestration of the witnesses).

Other Evidence Considered by the Court

In addition to witness testimony, relevant photographs, recordings, documents (such as medical, or police, reports), and other relevant evidence can be introduced as evidence (caution: each of these types of demonstrative evidence requires sufficient evidentiary predicate in order to be admissible over the objection of another party to the case, so it will be necessary to coordinate those foundations with your lawyer ahead of time). In addition to the evidence introduced by the parties, the Presiding Judge may ask questions to clarify what happened between the parties to the case.

 The Court’s Judgment

After all of the evidence and argument has been presented, and any questions posed by the Judge have ben answered, the court will make findings about: the nature of the relationship that exists between the parties to the case; whether the Respondent committed “Family Violence;” and, if Family Violence did occur, is it likely to occur in the future? Based on all of those findings, the court will either grant the requested Protective Order, or deny the request for that Order.

Conclusion

Family Violence is a serious matter, and our courts treat allegations of Family Violence quite seriously. Whether you are a victim of such violence, or one who stands accused of committing Family Violence, it is important that you take the case seriously, since its outcome will have serious effects.

Divorce

When Family Violence occurs in a marriage, divorce often follows, or is threatened. If you feel that may be the case with you, then you should learn how to get prepared for a divorce case.

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