What is the Impact of Family Violence on Child Custody Cases?

Few factors play a greater role in child custody battles than incidents of family violence. The following is a brief introduction to the laws governing custody in the context of domestic violence.

Texas law states that, “[i]n determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.” Tex. Fam. Code § 153.004(a).

More specifically, a court is prohibited from appointing parents to be joint managing conservators of a child if “credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent” against the other parent, spouse, or child, id. at § 153.004(b), and must consider family violence or sexual abuse in determining whether to deny or limit possession of a possessory conservator, id. at § 153.004(c).

If family violence is shown to have occurred within the two years prior to the suit or during the suit by a preponderance of the evidence, a court is generally prohibited from allowing that parent to have access to the child. Id. at § 153.004(d). However, the court can overcome such prohibition if it enters an appropriate possession order to protect the safety of the child and any other victim of family violence and if the court finds that “awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child.” Id. at § 153.004(d-1).

In general, though, “it is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.” Id. at § 153.004(e).

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What are Material and Substantial Changes in Custody Modifications?

A court that has continuing and exclusive jurisdiction over a child may modify custody orders at any time. Tex. Fam. Code § 156.001. However, it can do so only in certain limited circumstances. In Texas, a child custody order can be modified if modification is in the best interest of the child and: 1) the custodial parent voluntarily gives custody of the child to another person; 2) a child who is at least twelve years old has told the court that he or she wants to change the agreement; or 3) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since either the date the order was rendered or the date on which a mediated settlement agreement was signed. Tex. Fam. Code § 156.101 (a). The statute leads to the obvious question, “what does it mean for circumstances to have materially and substantially changed?”

Although the family code does not define “material” or “substantial,” Texas courts have found material and substantial changes in a wide variety of situations. “Material changes may include (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, and (5) a parent’s becoming an improper person to exercise custody.” In re P.H.R., No. 01-14-00101, 2014 Tex. App. LEXIS 13905 at *12 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet. hist.). Of course, every situation is different, and courts often must interpret specific factual situations in order to reach a proper decision even when the change alleged may not be obvious or objective. See In re S.N.Z., 421 S.W.3d 899, (Tex. App.—Dallas 2014, pet. denied) (question is whether trial judge made a reasonable decision or erred in his application of discretion).



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How can a Father win Custody?

Fathers often ask what rights they have when it comes to winning custody of their children. This is because many people believe that fathers and mothers have different rights when it comes to child custody. In reality, both parents have exactly the same rights when it comes to custody. In Texas, the best interest of the child is the standard by which the court will judge both parents’ request for custody. So, in order for a father to be granted custody, either sole or joint custody, he must demonstrate to the judge that it would be in the best interest of the child. There are many things that a father can do to show the judge that granting him custody is in the best interest of his children.

Make time for the children.
If a father has not been a big part of his children’s lives while married, it will be difficult to show that giving him custody is in their best interest. Judges often look at how active a parent is in his children’s lives to judge how important custody is to him. This can be a challenge for many fathers because they are working a great deal of the time to support the children. Even if this is your situation, focus on the quality of time that you spend with your children. Quality time can be working on homework, preparing and eating meals with the children, and doing activities with the children. Try to be a part of every aspect of your children’s lives as much as possible.

Cooperate with the mother in co-parenting the children.
One of the most important things to the court is how the parent works with the other parent regarding the children. Judges view parents who work together in a cooperative and peaceful manner as parents who put their children’s interest before their own. Even if the mother is uncooperative, you must demonstrate that you have gone out of your way to accommodate her needs and, more importantly, the children’s needs. A father who can show that he continues to work with a difficult and angry mother may very well convince a judge that custody for him, rather than the mother, is in the best interest of the child. It is a good idea to keep track of any times that the mother is unwilling to co-parent with you.


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Top 10 Most Important Do's and Don'ts during a Child Custody Battle

Going through a child custody battle is one of the most difficult times in a person’s life. Most people want to know, “How do I win custody of my child?” When fighting for custody or visitation of your child, there are many things that a judge is going to take into consideration when determining the custody that is in your child’s best interest. Therefore, everything you do must reflect your concern for your child’s welfare. Here is a list of the most important things to do while fighting for custody of your child.

1. Stay up to date on all child support payments.
Regardless of which parent is ordered to pay child support, the judge is going to look at the payments – or lack thereof – as an indication of his or her concern for the child. Set reminders for yourself before the payment is due, or set it up to be taken out of your paycheck. Most important, make certain that there is a record of every payment. If you don’t pay through the Attorney General’s office, always pay by check and get the receipts from the bank.

2. Stay out of trouble with the law.
You absolutely do not want to give the other parent anything to use against you in court. One of the worst things that you can do is to break the law. Charges such as driving under the influence, drug use, and assault can be deal-breakers in the judge’s eyes. Because this is so important, it is best to avoid all situations that could put you in danger of slipping up. For example, limit your alcohol when at a party and always take a taxi or have a designated driver.

3. Be careful when using social media.
Oftentimes, the most damaging information that the other side will have against you comes directly from you – through your Facebook page. Posting pictures or comments that can be taken out of context or used in a negative light can be very damaging. Even an innocuous posting can create a storm of other comments that can be used by the other parent to prove impropriety. The best thing to do is to delete (or hide or drastically reduce usage of) all social media accounts, with the exception of any that are specifically for business or work.

4. Control your emotions.
Divorce and custody battles are inevitably the most contentious and emotionally turbulent times of a person’s life. Unfortunately, this can lead to heated exchanges between you and your ex. Of course, you should never lose control of your emotions in front of your child, but ideally, you should not lose control at all. Try to find ways to stay calm while with your ex. This will go a long way to show the judge that you are concerned only with the best interest of your child and not your own problems.

5. Hire an attorney.
Many people try to save money during a custody dispute by not hiring an attorney and representing themselves. This can be a huge mistake, especially when the other parent has an attorney. If you try to represent yourself, the judge is not allowed to treat you any differently than an attorney. Therefore, you will have to be aware of all required court procedures and deadlines, as well as the underlying law. This can be a very difficult task, and there are many ways that it can end up hurting you.


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10 Biggest Mistakes that you Can Make During a Child Custody Case


Many people involved in a dispute involving their children want to know, “How do I win a child custody case?” or “How do I get visitation rights?” But, sometimes, knowing what not to do can be even more important than knowing what to do. Fighting for custody or visitation of your child can be one of the most contentious and emotionally taxing times in a person’s life. Because of this, it is easy to get caught up in the emotional turmoil and make mistakes that you would not normally make. Even worse, these mistakes can cost you the most precious thing in your life – time with your child or children. Here is our list of mistakes to avoid during a child custody case.

1. Breaking the law
One major mistake that the other parent can use against you in court is an arrest or worse, a conviction. Avoid situations that put you in danger of breaking the law. For example, limit your drinks at the party, or better yet, don’t drink at all. An arrest for DUI, assault, or any other of the bad decisions that sometimes accompany alcohol will absolutely hurt your chances of getting custody.

2. Maintaining a presence on social media
Social media – such as Facebook – is a big part of many people’s lives, and it may have its benefits. However, there is virtually no benefit to posting anything on the Internet about your life while you are in a custody battle. More often than not, most of the dirt that an ex-spouse finds on the other parent is on his or her own Facebook page. The best thing to do is delete all social media, especially any type of dating application, from your life during this period.

3. Moving in with someone
Your child’s life is being disrupted a great deal already, and any extra change can be very upsetting for the child (as well as for the other spouse). The judge will be looking at the living situation at your home and how it affects the child. A new significant other or even a roommate is often seen as an unnecessary and possibly threatening addition to the child’s life.


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