There are more than just the primary concerns about homework, the flu, friends, and eating enough vegetables in many families. Unfortunately, I have come to know many families who have been afflicted by abuse in the home. This abuse could take on many forms- drug abuse, physical abuse, or even abuse that affects a child’s mental health. The problem with these issues is that they can take effect now and impact that child for years to come. If you are a parent who has a spouse who is endangering your child’s safety, you must take steps to prevent that harm from occurring.
For these reasons, I would like to spend some time today discussing the issue of abuse in the home. While abuse can take on many forms, the result is often the same: a child who has an injured sense of self and the purpose of the reality they inhabit. The primary hallmark of Texas family law is that both parents should not be prevented from having a fair opportunity to raise their child and be there physically for that child. However, if abuse is a factor in your child’s life and that abuse comes from a parent, a different discussion will need to take place.
Equal time and access are not favorable when drugs or violence are in play.
While a Standard Possession Order allows parents to share in the responsibilities of raising a child, it also allows parents to share in possession of that child. Even if you are awarded a Standard Possession Order due to your divorce, you will be able to see your child every week. Holiday visitation is shared equally between parents, and you will have a month to yourself each summer where you can vacation with your child or relax at home during the warm summer months.
However, if your spouse is abusing drugs or has engaged in violent behavior in the home, it is not a good idea for your child to be around them at this time. Supervised visitation is often time ordered for parents who find problems associated with addiction or violence against family members. If this issue is brought before a court, a judge will not be willing to risk your child’s safety to allow your spouse to have extended contact with them.
Supervised visitation can occur in several locations, but there are specific locations in Houston where you can arrange for supervised visitation to happen ahead of time. Or, a particular area can be utilized, like a restaurant, park, or another public place. Finally, a private home can be the site for supervised visits. I have also seen requirements for ongoing psychiatric care to allow for the possibility of the supervised visits being lifted in the future in favor of traditional visitation periods.
There are no trade-offs considered when the safety of your child is at stake.
A former client had an ex-husband who drove down the interstate intoxicated for ten miles with their two-year-old daughter asleep in the backseat. Police had to follow him for two miles before he noticed that he was being signaled to pull over. Eventually, he pulled over, was administered a sobriety exam, and promptly failed. After that point, he was arrested, and our client was called to come and pick the little girl up.
The following Monday, this woman called our office to set up a consultation to see what she could protect her child. Her divorce orders were a couple of years old, and she had no precautions if her ex-husband drank to excess with their daughter present. She wanted to know how long she could keep her child from him and what sort of protection could be put into place moving forward.
We immediately filed a motion to modify these folks’ divorce decree to allow for alcohol and drug testing at random intervals, as well as for supervised visitation. We wanted to get this case into mediation as quickly as we could because we knew that the opposing party did not have a leg to stand on and should be willing to negotiate rather than prolong this case. Achieving a just result for our client and saving her money were our most important goals.
In mediation, the mediator for this Montgomery County case immediately brainstormed a plan with our client and me that we could propose to her ex-husband that involved supervised visits, restrictions on his ability to drive with the child in the vehicle with him as periodic alcohol testing. He would be barred from consuming alcohol in the twenty-four-hour period before visitation began and could not drink while the child was with him, either.
The alcohol testing catches some by surprise because it costs money to submit these tests. We worked the costs out as follows: the first three tests would be paid for by the ex-husband, and our client would pay for any remaining tests. If the ex-husband passed his first three tests (to occur once a month randomly), he could not be re-tested again without notice from our client. This way, the costs were spread out and the opposing party would not be made to pay for tests continually.
The bottom line is this: nothing you can do is as important as protecting your child. You already knew that before reading today’s blog post. However, there are specific legal steps that you can take to protect your child that you would not be able to do otherwise. Before worrying about yourself and not doing much of anything to protect your child, it is a good idea to consult with an experienced family law attorney to see what options are available to you.
Mental illness and possession of a child
If your spouse has been diagnosed with a mental illness, you have to walk a very unsteady tight rope as far as being respectful of their right to parent your child and aware that this mental illness could impact your child negatively. For you, the concern goes well, being just the usual concern that divorcing parents have that the other person will raise your child in a way that is different from what you had envisioned years before. You are not getting in the form of your spouse by making their mental illness a part of your divorce. You are protecting your child from potential harm.
Please make no mistake; by having a mental illness, you are not declaring that this condition leaves them incapable of participating in your child’s raising and decision making. It can mean that, but for most mental illnesses that I am aware of, there is no absolute bar to participating in the parenting process that should accompany a diagnosis. Limited or supervised visits, as we had described in the section before this one, are not always appropriate just because your spouse has a mental illness.
However, it is not a bad idea to have a professional like an attorney ad litem or an amicus attorney appointed by the court come into your life and investigate the matter thoroughly. A social study can be performed to assess your spouse’s ability to parent your child independently of you. That person assigned to your case may determine that your spouse’s condition is under control with medication.
Recommendations can then be given to the court that language needs to be included in your final orders requiring your spouse to maintain their medication regimen until a doctor changes them. Keep doing what you’re doing until a trained medical professional can come in and make a change should the need to do so arise. In the event that something were to happen where your spouse engages in behavior that puts your child at risk, you can also write something into your final decree of divorce that allows you to take control of the situation and protect your child.
The other end of the spectrum is an unfortunate possibility as well. If your spouse does not want to take control of their life as much as possible (or is unable to do so), then you may be forced by the circumstances to pursue supervised or limited visitation with your child and that parent. Again, this is not ideal. A judge will not relish restricting visitation by a parent with their child. However, some conditions are so severe that exposing your child consistently to a person with an altered mental state can be unhealthy.
These key concepts are ones you want to make known to your attorney early on in the case. Your lawyer can then see that the appropriate wheels are set in motion if a professional person needs to be appointed to make recommendations to your judge.
Determining parentage of a child in Texas
All of the issues discussed the past few days are relevant only when both parents of a child are known. Otherwise, there can be no discussion of dividing parental rights. If you are a mother and do not know exactly who the father of your newborn child or soon-to-be child is, there are some steps that you can undertake to remove any doubt. Remember- you are protecting your child, protecting yourself, and allowing the child’s father to play a role in your child’s life by determining who the biological father of your child is.
A child can be born without knowing who the father is. While there are men who are thought to be more likely than others to be the father, there is no way to tell just by looking at your child or by merely piecing together recollections from when your child was conceived. Paternity is based on more than just allegations about remembering that you were with a man around nine months before your child was born. Indeed, that is where a paternity suit can begin, but it usually will not end up there.
A court will presume that your husband is the father of your child, absent evidence to the contrary. This is why you do not need to have your husband sign an Acknowledgment of Paternity at the hospital when your child is born. The law presumes that your husband is your child’s father if you are married.
This usually works out fine, but if your husband is not the father of your child, there need to be additional steps taken to determine who the biological father of your child is. If you are reading this as a woman’s husband and you are not sure that your wife is carrying your child, you need to be aware of what steps to take in this situation. It is not unheard of for a man to be forced legally to care for a not biologically speaking child.
We will pick up with this topic where we left off today in tomorrow’s blog post from the attorneys with the Law Office of Bryan Fagan.
Questions about supervised visitation and paternity? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan. Our office offers free of charge consultations with our licensed family law attorneys six days a week. These consultations are an excellent opportunity to ask questions and receive feedback about your particular legal situation. We take a great deal of pride in representing people in our community just like you and look forward to sharing with you what services we can provide for you and your family.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce“
Other Articles you may be interested in:
- Divorcing from an Abusive Spouse in Texas: What you Need to Know
- The Complete Beginner’s Guide to Texas Protective Orders
- Common-Law Marriage and Texas Divorce Guide
- I Want a Texas Divorce, but My Husband Doesn’t: What can I do?
- Am I Married? – Marital Status in Texas
- Can I sue my spouse’s mistress in Texas?
- When is Cheating Considered Adultery in a Texas Divorce?
- Six things You Need to Know Before You File for Divorce in Texas
- Can cannabis use affect your parenting and custody rights?