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).

Nonetheless, as with most issues in family court, the trial court is given latitude in determining whether there is “credible evidence,” or proof by a “preponderance of the evidence,” of family violence. For example, the court was found not to have abused its discretion in appointing the parties as joint managing conservators of their children, despite the wife’s allegation of three instances of physical abuse against her, when the husband claimed to have acted in self-defense in two instances and denied the third had occurred, because if “the evidence is conflicting and nothing undisputedly shows a history or pattern of violence, it is within the court’s discretion to resolve the conflict in favor of the person to whom it ultimately makes its award.” In re Marriage of McLain, No. 07-06-0143-CV, 2007 Tex. App. LEXIS 7993, at *3 (Tex. App.—Amarillo Oct. 8, 2007, no pet.).

Similarly, almost any protections or limitations put in place by the trial court will be found sufficient to allow possession, again because the trial court is judged to have the best ability to assess the witnesses. See In re D.B.W., NO. 10-06-00057-CV, 2007 Tex. App. LEXIS 1532, at *4 (Tex. App.—Waco Feb. 21, 2007, no pet.) (no abuse of discretion in failing to make father sole managing conservator despite mother’s plea of guilty to family violence because court had ordered mother to undergo counseling, comply with terms of probation, and refrain from use of alcohol or controlled substances within 24 hours of access to children).

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