How Domestic Violence Affects Child Custody in Texas

Understand how domestic violence can impact custody rights.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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Physical or mental abuse that occurs behind closed doors is almost always brought out into the open during child custody proceedings. Such abuse, also called "domestic violence," can permanently affect which parent receives primary custody of his or her child. Depending upon the severity of the abuse, the abuser may end up with limited visitation and - in the most extreme circumstances of abuse - loss of parental rights.

This article provides a general overview of how domestic violence can impact child custody and visitation rights in Texas. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Child Custody Orders in Texas

When establishing child custody orders, a judge's goal is to determine what custody situation will best serve the child's physical and emotional needs. Texas divides child custody into two categories: conservatorship and possession/access. Conservatorship includes the right to make medical, educational, religious and other decisions for the child. Possession and access refers to which parent lives with the child and the frequency of the other parent's visitation with the child. If one parent has a history of domestic violence, a judge would certainly take that into consideration when making custody-related decisions. For more information on custody decisions, see Child Custody in Texas.

Understanding Domestic Violence

Texas law states that domestic violence (also called "family violence") occurs when a family member causes or intends to cause physical harm or fear of immediate harm, injury or sexual assault to another family member. This type of harm may include actual physical violence or mental abuse including threats to hurt a family member.

The Texas court system offers a number of resources and protections for victims of domestic violence and their children. If you or your family member is a victim of domestic violence, use the Texas Family Violence Resource Centerto locate nearby programs or shelters for help. You can also call the National Domestic Violence Hotline at 1-800-799-SAFE (7233).

Protective orders

In situations where abuse has been ongoing or the victim fears future abuse, a protective order may be appropriate. Learn more about protective orders and fill out the Protective Order Kit if you need to begin the process of obtaining a protective order for yourself or your child. A protective order will be granted if the judge determines that abuse has occurred and is likely to occur in the future.

For cases where custody has not yet been decided, one of the factors a court will look at to determine if a parent has a history or pattern of abuse, is whether a protective order was granted against that parent during the previous two years. One episode of domestic violence or abuse can be deemed a "history" of abuse. Therefore, even one single episode of domestic violence can drastically affect a parent's visitation rights with their child.

Impact of Domestic Violence on Custody Decisions

When a court decides which parent should be the conservator and have possession of the child, Texas law prohibits a court from making parents joint conservators if there has been a history or pattern of physical or sexual abuse by one parent against the other parent, a spouse or a child. Also, Texas law does not allow a parent to have possession of a child if that parent has a history of family violence during the previous two years or has sexually assaulted or abused the child in question.

While a parent's history of domestic violence can limit their chances at becoming sole conservator of a child, the abusive parent may still have custody rights and access to their child if the court determines that:

  • the child's physical and emotional health would not be endangered by the abusive parent's access or visitation
  • the abusive parent's access or visitation with the child would be in the child's best interests
  • a visitation order designed to protect the child exists, and
  • the abusive parent may have their visitation supervised and will be required to complete a treatment program.

Supervised visitation

Supervised visitation means one parent cannot be alone with their child without another designated adult present. Texas courts presume that it is not in a child's best interests to have unsupervised visitation with an abusive parent. This does not mean that an abusive parent can only ever receive supervised visits with his or her child; however, the parent would need to prove to a judge that the child would be safe in the parent's care and that there is no likelihood of ongoing abuse.

Termination of parental rights

A complete termination of parental rights is a severe and fairly uncommon outcome. A court may terminate a parent's rights to visit his or her child in only the most extreme circumstances. For example, when an abusive parent seriously injures or sexually assaults a child, a court may terminate all parental rights. Ultimately though, the court must find that termination would be in the best interests of the child.

If you have additional questions about the effect of domestic violence on custody rights in Texas, contact a local family law attorney for advice.

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