How a Domestic Violence Charge Impacts Child Custody Cases in Texas

Is domestic violence a factor in child custody disputes?

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In Texas, domestic violence can have a major effect on child custody in divorce proceedings. Such mental or physical abuse behind closed doors can permanently impact which parent receives the primary custody of a child or children.

In fact, if the domestic violence, family violence or domestic abuse is found to have been severe, the offending parent could receive extremely limited visitation rights or even a total loss of parental rights.

What are Texas’ laws on child custody?

As for Texas’ laws on child custody, they are divided into 2 areas:

  1. Possession/access
  2. Conservatorship

Possession refers to which parent lives with the child, while access indicates the frequency of the other parent’s visits or access.

As for conservatorship, this refers to which parent has the right to make all religious, educational and medical decisions for and concerning the child, as well as the right to decide where the child lives. If only one parent is granted such rights, that parent receives sole managing conservatorship. If both parents share such rights, that is known as a “joint conservatorship.”

If one parent has a history of domestic violence or abuse in the home, that clearly could impact a judge’s decisions regarding possession, access and conservatorship when the family is divided in a divorce.

In fact, Texas courts are prohibited from granting joint conservatorship if there has been domestic violence by one parent toward the other parent or toward the child.

What is domestic violence under Texas law?

As for what domestic violence is under Texas law, it’s part of state laws regarding assault.

Definitions and punishments are described by Texas assault laws in the Texas Penal Code. Such assaults occur when a person:

  • Intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative

  • Intentionally, knowingly or recklessly causes bodily injury to another person, including the person's spouse

  • Intentionally or knowingly threatens another person with imminent bodily injury, including the person's spouse

As for domestic assault, it can include emotional abuse due to threats, criminal threats, unlawful confinement and kidnapping. Domestic violence can also involve kicking, punching or hitting a person, attacking a person with a weapon, raping a spouse and abuse of a child.

For an assault to be considered “domestic assault” in Texas, they must involve an assault against a spouse or a former spouse, a family member by blood, marriage or adoption, a household member who lives in the same residence as the defendant (which can include a roommate, a nanny or a live-in maid), or against a current or previous dating partner.

Domestic violence in Texas can also involve assaulting foster children and foster parents, as well as assaults against a child of a spouse or former spouse from a previous relationship.

Other forms of domestic assault can include:

  • Aggravated domestic assault, which involves serious bodily injury or use of a weapon, even if the weapon is only brandished as a threat

  • Continuous violence against a family, which involves at least 2 reported incidents of domestic violence within a 12-month period

Beyond the loss of parental rights, such charges can lead to harsh penalties, including many years in prison and thousands of dollars in fines.

All of this brings us to how domestic assaults can affect child custody cases.

How can a domestic assault charge affect child custody?

Under Texas child custody laws, a court cannot make 2 parents joint conservators of a child if one parent has a pattern or a history of sexual, physical or emotional abuse against the other parent or the child.

Texas law also prohibits a parent from having possession of a child if the parent has a history of domestic abuse or family violence, or if they have abused or sexually assaulted the child in the 2 previous years.

Even so, under Texas child custody laws, a parent with a history of domestic violence still may have some rights to custody and access to a child. These can apply if the abusive parent’s visitation with or access to a child would be in the child’s best interests, and if the child’s emotional and physical health would not be endangered by such visitation or access.

Another option that a court may grant is supervised visitation of the child by the parent who has been found guilty of domestic violence or abuse. Such supervised visitation means that the abusive parent may not be alone with the child unless a designated adult is also present.

Finally, a court may prohibit a parent from visiting a child at all unless there are extreme circumstances, such as an imminent death by illness. Such a total termination of a parent’s rights is rare, even in cases of domestic violence, and it occurs only when the court determines that total termination of a parent’s rights is in a child’s best interest.

In fact, doing what’s considered “best” for a child is the basis for making virtually all decisions on child custody, especially when domestic violence is a factor.

Your legal rights involving child custody and domestic violence

Though Texas laws can be severe regarding domestic violence and its impact on child custody, a parent who has been accused or convicted of domestic violence still has legal rights.

Keep in mind that false claims of domestic violence are often made by one parent in a divorce or child custody proceeding in order to gain legal leverage. In fact, it’s estimated that 10 percent of all defendants in such cases have been falsely accused of domestic violence.

If you face a claim or a charge of domestic violence — which could have a huge impact on child custody — you should fight for your legal rights.

Such rights can be protected by an experienced domestic violence defense lawyer in Houston, Harris County, Montgomery County or Fort Bend County.

Contact the Neal Davis Law Firm today for the experience, skill and knowledge your case needs. We will quickly give you a confidential legal review of your case. Then, you can decide how you want to proceed when facing a domestic violence charge or allegation.

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