Convincing a Court to Lift a Residence Restriction on a Child (Part 1)

Feb 18, 2023 | Child Custody, Family Law, Protective Orders

The ability of a court to restrict the residences of children is one which varies under state law, from state to state. I am licensed to practice law in only the State of Texas, so my discussion will focus on Texas law. While there may be similarities to the laws of other states, you should check with an attorney licensed in the state in which your case sits, if that state is not Texas.

The issue of lifting, or modifying, a Residence Restriction, just like with other child custody and possession issues in Texas cases involving children, comes down to determining what is in the child’s best interest.[1]

The Texas Family Code[2] provides that it is the public policy of the State of Texas to:

  • Assure children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (my emphasis).
  • Provide a safe, stable, and nonviolent environment for the child; (my emphasis, again); and
  • Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

 

Accordingly, our Supreme Court has held that that “(t)he Legislature’s expressed public policy considerations guide our analysis of the positive-improvement and best-interest standard in the relocation context, but no bright-line test can be formulated. Suits affecting the parent-child relationship are intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.

In looking at whether the change to the Residence Restriction is in the child’s best interest, courts should consider, among other things:

(1) the reasons for and against the proposed move;

(2) the effect of that move on extended family relationships;

(3) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child;

(4) the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the noncustodial parent and the child;

(5) the nature of the child’s existing contact with both parents and the child’s age, community ties, and health and educational needs;

(6) whether there is a good-faith reason to request or oppose the move;

(7) the noncustodial parent’s ability to relocate;

(8) the degree of economic, emotional, and educational enhancement for the children and custodial parent; and

(9) the need for continuity and stability in custody arrangements.

Further, to the extent applicable, the best-interest factors used when establishing the initial or current order may be considered

 

Importantly, the controlling considerations for the court are those changes of conditions affecting the welfare of the child. The desires, acts, and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child.

 

So, for example, a change affecting the best interest of a child may be whether one or both parents are romantically involved with other individuals who are frequently around the child. If so, what is the nature of the relationship between the new romantic interest and the child? Has either parent developed a Substance Use Disorder? Have the work hours of a parent changed? Is there a new step-brother or sister in the picture? The list of possible changes is long. The idea is to focus on what is new or changed since the order imposing the Residence Restriction was entered. The court will not want to consider whether the Residence Restriction should have been imposed in the first place. That decision was made earlier. Our job will be to show that it is no longer in the child’s best interest.

I hope that this has given you some things to consider. Until next time, keep on loving your kiddos!

 

 

 

[1] TFC Section 153.002

[2] Section 153.00l(a)(l)

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Coronavirus: Can Texas force Parents to Quarantine Their Kids (and themselves)?

Mar 6, 2020 | Child Custody, Family Law

It was reported earlier this week that with the number of Covid-19 corona virus cases increasing, the 11 regional presiding judges in Texas earlier this week began appointing judges within their respective region to be available to process cases where infected people refused to self-quarantine. The Texas Office of Court Administration[1] is in charge of this project. When can someone be forced into quarantine, and what are the criteria for making that decision? That is what we will discuss today.

Since there have been no reported cases in Texas where a person infected by the Covid-19 coronavirus has refused to self-quarantine, this week’s actions are merely precautionary. According to personnel at John Peter Smith Hospital in Fort Worth, Texas who I spoke with on March 5, 2020, they have previously had to require patients infected with tuberculosis to be quarantined, when those patients refused to self-quarantine themselves. So, the potential refusal of a patient infected with Covid-19 to self-quarantine should not be surprising.

The Communicable Disease Prevention and Control Act[2] provides the procedures, jurisdiction, and requirements, to force someone to be quarantined against that person’s will.

That act provides that “(t)he state has a duty to protect the public health. Each person shall act responsibly to prevent and control communicable disease.”[3] That act expressly provides that the individual may be isolated or quarantined in an appropriate facility and shall obey the rules, orders, and instructions of the department or health authority while in isolation or quarantine.” and, that during a “emergency or an area quarantine,” such persons may be forcibly treated.[4] So, the question remains about when can that can happen.

Our District Courts have jurisdiction of these cases,[5] and get involved with them when a health authority requests a “court order for the management of a person with a communicable disease” by filing a sworn application through “a municipal, county, or district attorney.”[6] Part of that application includes a medical evaluation and/or a copy of any administrative order finding “reasonable cause to believe that an individual is ill with, has been exposed to, or is the carrier of a communicable disease,”[7] which authorized the forced quarantine of a person prior to seeking the court order.

When an application for management (quarantine) of a person is filed, the court must appoint each individual a “an attorney to represent (him or her) not later than the 24th hour after the time” that the application is filed.[8] Then, the court must set a hearing for at least 3 days, but no more than 14 days, later, unless either a quicker hearing, or a delay (“continuance”), is requested by the individual.[9]

Prior to that hearing, the state may request that the person be held in protective custody.[10] That is done by the filing a motion and affidavit stating that there is reason to believe that the person meets the criteria to mandate quarantine upon that person.[11]

On the basis of that motion and affidavit, the court may issue an order for protective custody of the person, prior to the hearing on the application for management (quarantine), if the court determines that “the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health; and that the person fails or refuses to comply with the” requested quarantine).[12] The person may be apprehended and transported to a designated facility, to remain until a hearing occurs.[13]

The next step in the process is setting, and notifying, the person and his or her attorney of a “Probable Cause” hearing,[14] to determine whether there is probable cause to hold the person until a final hearing can be had.[15] This hearing must occur “not later than 72 hours after the time that the person was detained under the protective custody order.”[16] The person who is the subject of the proceeding may introduce evidence to challenge the allegations made against him or her.[17]

At the conclusion of the Probable Cause hearing, “The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.”[18]

With those preliminary matters taken care of, the court can then consider the underlying application for management of the person who is the subject of the case. At that hearing, in order to prevail, the state must prove by clear and convincing evidence that the person:

  • is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;
  • has refused or failed to follow the orders of the health authority if the application is for inpatient treatment; and
  • meets the applicable criteria for orders for the management of a person with a communicable disease.”[19]

Unless the state can meet that high burden of proof, the person must be immediately released.[20]

The goal of protecting public health must be balanced with the individual liberties of people. To prevent state health authorities from over-reacting, and thereby, wrongly depriving us of our freedoms, the laws regarding quarantine provide numerous safeguards. The state cannot arbitrarily decide to quarantine people. Instead, they can only do so when they have sufficient evidence to support that action.

 

[1] According to its website, “The Office of Court Administration (OCA) is a unique state agency in the Judicial Branch that operates under the direction and supervision of the Supreme Court of Texas and the Chief Justice.

Our mission is to provide resources and information for the efficient administration of the Judicial Branch of Texas.”

 

[2] HEALTH AND SAFETY CODE TITLE 2. HEALTH SUBTITLE D. PREVENTION, CONTROL, AND REPORTS OF DISEASES CHAPTER 81. COMMUNICABLE DISEASES

[3] Subchapter G, Sec. 81.002 of the Communicable Disease Prevention and Control Act (hereinafter “the act”)

[4] Sec. 81.009(a)

[5] Sec. 81.157 & 81.151.(b) of the act

[6] Sec. 81.151(a) of the act.

[7] Sec. 81.083(b) of the act

[8] Sec. 81.153(a) of the act

[9] Sec. 81.154 of the act

[10] Sec. 81.161 of the act

[11] Sec. 81.161 of the act

[12] Sec. 81.162(a) of the act

[13] Sec. 81.163 of the act

[14] Sec. 81.164 of the act

[15] Sec. 81.165(a) of the act

[16] Sec. 81.165(b) of the act

[17] Sec. 81.165(d) of the act

[18] Sec. 81.166(a) of the act

[19] Sec. 81.171(a) of the act

[20] Sec. 81,171(b) of the act

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Legal Protections Available for Family Violence

Nov 23, 2017 | Family Law, Child Custody, Child Protective Services, Family Violence, Protective Orders

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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When can Texas CPS remove a child from your home?

Oct 23, 2016 | Child Protective Services, Child Custody, Family Law

Texas law (the Texas Family Code) provides that CPS shall investigate reports that a child has been abused or neglected. Those reports are typically made through either a phone call, or online ( ph. 1-800-252-5400 or www.txabusehotline.org).

The law goes on to state that the investigation shall be “prompt and thorough,” and may require the assistance of local law enforcement. And when that investigation reveals an “immediate danger” to the welfare of the child, then CPS may remove the child from his or her home, either with or without first obtaining a court order, depending on whether “there is …time” “consistent with the health and safety of (the) child” to first obtain a court order (such as a temporary restraining order).

The law provides that CPS could first file a lawsuit, serve the parents with those lawsuit papers, and set a hearing, all prior to removing a child. But, in my experience, that rarely happens. Instead, CPS does not typically initiate a case until and unless they determine that the situation is, in their opinion, so bad at the child’s home, that CPS needs to remove the child from that home. And, by that time, the CPS personnel involved in making that determination usually will decide that the need for removal is imminent.

In whichever way CPS removes a child from his or her parent, the court must have an “Adversary Hearing” within fourteen (14) days of when the child was taken into custody by CPS, unless the child has already been returned to his or her home by then. At that hearing, the child’s parents will be allowed the opportunity to dispute the charges being made by CPS, to cross-examine the witnesses called to testify by CPS, and to present their own testimony and any other relevant evidence that they may have.

At the conclusion of that hearing, the court shall order the return of the child “…unless the court finds that: 1. the child was in danger; 2. the child’s remaining in the home is contrary to the welfare of the child; 3. the urgent need for protection required the immediate removal of the child; 4. reasonable efforts…were made to eliminate or prevent the child’s removal; and, 5. 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.” (see Texas Family Code section 262.201). In other words, the court is not going to return children to parents whom the court finds were not parenting them safely.

If the continued removal of the child is approved by the court, then the court will make further orders at that time regarding the parents and child. If, however, the continued removal is not approved of by the court, then the case terminates.

When CPS gets involved in a case, it can be quite serious, and that involvement can dominate a family’s life for a year or more. These situations should be taken as the important events that they are.

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