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How Does Family Violence Affect a Family Law Case

How Does Family Violence Affect a Family Law Case

We previously discussed Family Violence, and available Protective Orders within “Legal Protections for Family Violence (Part 1),” “Legal Protections Available for Family Violence,” (Part 2), and “Important Factors in Cases Requesting Protective Orders.” Those posts discuss the availability of those orders; issues that are important for the court to determine whether Family Violence has occurred; and, “Just what is Family Violence, anyway?” Today, we will discuss a different, but related subject: how does a finding of Family Violence affect a Family Law case?

The relationships between parents, with one another, as well as the relationships that those parents have with their children, was once thought to be a ‘family matter” that was beyond the scope of courts to address. The idea was that family members can and should address any issues that they have with one another. Obviously, that way of thinking has been replaced with one that seeks to protect children from being abused or neglected, themselves, and from growing up in homes where there is Domestic Violence occurring. The ways that our courts do that during Family Law litigation is the subject of today’s writing.

Initially, it is important to note that while each of the 50 states comprising the United States has laws protecting children in these circumstances, we will limit our discussions to Texas law today. For information on the laws of other jurisdictions, please consult with a properly licensed and experienced attorney for that jurisdiction.

Under Texas law, Family Law cases involving children (Suits Affecting the Parent-Child Relationship) begin with certain presumptions. These include presuming that parents should be appointed as Joint Managing Conservators of their children;[1] and, that each parent should be awarded a minimum of Standard Possession of his or her children[2] who are three years of age or older.[3]  Those presumptions, however, do not apply when “credible evidence is presented of a history or pattern of” child neglect, child abuse, or abuse of the other parent.[4]  In those instances, other presumptions apply.

Those other presumptions include restricting or limiting the access of the “violent parent” to the children;[5] and, appointing the “Non-Violent Parent” as the Sole Managing Conservator of the children.[6] The court may require that any possession of the children given to the “Violent Parent” “be continuously supervised by an entity or person chosen by the court.” And, the exchange of the children, instead of taking place at the children’s schools, “occur in a protective setting.” The court can, also, require that a parent “abstain from the consumption of alcohol or a controlled substance … within 12 hours prior to or during the period of access to the child.” The court has the power to, also, require that as a condition of having child possession, the Violent Parent ”complete a battering intervention and prevention program;” or, (if that is unavailable), complete a program with a mental health professional who has proper education, licensing, and training is domestic violence.

Texas law has presumption upholding the rights of parents to raise their children. If, however, it is shown that children are not safe with that parent, our courts have powerful tools to protect children from that parent.

Until next time, keep on loving those kiddos!

[1] TFC sec. 153.131

[2] TFC sec. 153.252

[3] TFC sec. 153.254

[4] TFC sec. 153.004 & 153.005

[5] Id.

[6] A Sole Managing Conservator makes most of the important parenting decisions, without needing to first obtain the agreement of the other parent, or anyone else, for that matter. This is similar to when fathers used to merely pay child support, and have weekend visits, while the Mother “raised” the children.

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