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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