In the State of Texas, the standard that a family court uses when making decisions on behalf of a minor child is the best interests standard. We still have this standard applied in both child custody and divorce cases. The best interest standard attempts to take into consideration the mental, physical, and emotional development of the child, their specific needs, and their future care needs. It is complex and relies on a Supreme Court decision known as Holley, as well as the experience and opinions of the judge, gained in their years on the bench. The court will make decisions for your child only if you and your co-parent are unable to agree on issues related to custody, conservatorship, child support, or any other subject related to your child.
The presumption in Texas is that it is in the best interests of your child to have an ongoing and close relationship both with you and your co-parent. I think most of you reading this blog post would agree that your child has something to gain from having a strong relationship with both parents. You may see eye to eye with your co-parent very much these days but hopefully, you think that he or she is a good parent and that your child enjoys or at least benefits from spending time with him or her. Ideally, you and your co-parent can help to balance out responsibilities and take the burden off the other's shoulders.
An outgrowth of this presumption is that all other factors being equal, you and your co-parent should have joint custody and conservatorship rights/duties about your child. Shared custody is what you may have heard this called in other contexts. Joint custody refers to how you and your co-parent will share time in an even fashion with one another. Additionally, you and your co-parent will share parenting rights and duties. Most decision-making that comes into place for your child will require that the two of you make decisions together and consult with one another in non-emergency scenarios. So, even if you think that this family law case is going to be the end of your relationship with your co-parent, it's time to think again. The most important part of that relationship is going to be maintained even if the nature of the relationship itself will change. You will still have the responsibility to raise your child together.
There are exceptions to this rule, however. Those exceptions come into play when your co-parent is deemed to be unfit by a Texas family court. This isn’t a decision that will be made lightly. The court will look at several factors, the circumstances of your life, the impact of your co-parent's behavior on your child, and then make the best interest determination as we alluded to earlier in today’s blog post. From there, the court would determine the extent to which your co-parent should be assigned conservatorship rights and duties as well as how much parenting time should be allotted to him or her. If the court determines that extremely limited rights, duties, and time should be provided to your co-parent in these orders then you would be named as the sole managing conservator of your child in a divorce or child custody case. This is not a very frequent occurrence given the rather extreme circumstances that must be in play for that to occur.
What we are going to cover in today's blog post from the Law Office of Bryan Fagan is what does it mean to be named as an unfit parent in Texas? The bottom line is that unfit parents can have their parental rights cut to a bare minimum. Parenting time may be minimal or even supervised. The rights of that parent may be restricted significantly. If this is a situation that you may be facing, then today’s blog post is one that you should not skip past. Any questions about your situation should be referred to one of our experienced family law attorneys and we can help walk you through a free-of-charge consultation and answer your questions at that time.
What is a court looking for when determining the fitness of a parent?
As with many issues in a Texas family law case, the issue of being deemed an unfit parent is a question that is largely left up to the opinions of the family court judge who is overseeing your case. The Texas Family Code does provide specific guidelines for a judge to follow when it comes to deciding about the fitness of a parent. Most importantly, the court would look at the way that a parent interacts with a child and determine whether that interaction would significantly impact your child's physical health or emotional well-being negatively. If the judge determines that you or your co-parent would have such a negative impact on your child's well-being physically and emotionally then he or she is likely to restrict or even terminate the parental rights of the offending parent.
To make major decisions like this, a court would not only need to consider the following factors but would need to find actual proof that these factors exist to limit or terminate parental rights. A history of drug or alcohol abuse is a major factor for courts to consider when looking at possible restrictions on conservatorship and visitation rights. We know what kind of effect alcohol use can have on our ability to make good decisions and even perform relatively simple operations like operating a motor vehicle. Alcohol and drugs can be significant impacts on our physical health but can be disastrous if we are using these substances around our children. If you or your co-parent have a history of drug or alcohol abuse then that is a factor that a family court judge would surely consider when determining how to assess parental rights, duties, and parenting time in a family law case.
The most significant example that I can think of from the recent past involving a case that our office has worked on involves a young woman and her son that we were fortunate to represent. In this situation, a child custody case had been filed by the mother of the boy to establish parenting time, conservatorship rights/duties as well as child support. Only one week before a temporary order hearing the boy's father picked him up to take him to his house for informal visitation that had been established. They spent time together at his home where the father had started drinking alcohol. The situation persisted into the evening when it was time to bring the child home to his mother.
Unfortunately, the father decided to put the child into his truck and try to take him home while he was intoxicated. He ended up driving the wrong way down multiple streets and eventually was pulled over by police. It was immediately determined that he was under the influence of alcohol, and he was then taken into custody. Our client was contacted and asked to come to pick up her son from the scene of the arrest. Needless to say that she was shaken and very worried about the entire scene. Fortunately, the child was unharmed and was asleep through the entire proceeding.
What happened next was we filed a request for an emergency temporary order hearing after mediation had already been set for the next week. We attended mediation and held all the cards in the case. The father and his attorney (through the mediator) were very sorrowful about what had happened involving the child. They understood his behavior was beyond dangerous and showed little regard for the life of the child. With that said, these folks wanted to be able to negotiate something so they could avoid the need to go to those temporary orders hearing.
The parties agreed to our client having sole managing conservator status but with the possibility of a second round of mediation to occur in six months if the father could maintain sobriety, attend each scheduled visitation opportunity with the child, and not run into any additional issues with the law. The father understood that his options were limited and decided to take them up on this offer. This is an extreme example and one that I hope would not be relevant in your situation. However, just to give you some perspective on the story this sort of thing does happen and can be the result if you have a problem with drugs or alcohol. Even if you abuse drugs or alcohol, not in the presence of your kids it is still something that a court can look to when determining fitness, conservatorship rights, and other aspects of your child custody case.
Sexual offenses and crimes are other major areas that can determine fitness in a child custody situation. If you or your co-parent have a history of sexual abuse or neglect, then that can be used against you in a child custody case if fitness is coming up as a relevant topic. In truth, even if someone in your home is the one with a history of crimes against children then that will become a relevant factor very quickly.
An example of this that I can provide you with involves a client of ours from a few years ago. He was living in a home that he owned and was allowing family members to stay with him. His uncle and his mother were the relatives and our client explained to us that his relationship with each person was good. He would further tell us that the kids’ relationship with both was good. We had no reason to think otherwise. During his case, it came to our attention that our client’s uncle had a history of sexual crimes against children. Looking further into the situation the children were around the age of our client’s kids. This was a potentially dangerous situation for the children and a potentially disastrous development for our client.
We asked our client about his uncle. He seemed caught off guard by us asking about the uncle but eventually came around to tell us the truth. His uncle was out of jail and was on probation. He met regularly with his probation officer. He had a good relationship with the family, including our client's children. While all of this may have been true, it was not going to be a situation that a judge would willingly introduce two young children to. We know that action had to be taken quickly to combat the potential impacts of the uncle on the child custody case.
We recommended that our client be respectful yet firm in his asking his uncle to find another place to live. We explained that no family court judge would allow two children to live in a home with a person who has been found guilty of sexual crimes involving children. It was just a bridge too far and was dangerous to boot. Our client understood and assured us that he would ask his uncle to move out immediately so that his presence in the home would not hurt our client’s case.
Our client did as he told us he would. He asked his uncle to move out of the house. Uncle did move out. Our client did not suffer any harm because of the uncle's situation and fortunately enough neither did the children. This was a close call. Had we not found out about the uncle until too late it could have turned out much worse for our client. However, this was a lesson for me to always be thorough about asking about the client's living situation. What you may consider normal living arrangements may be something that holds your case back.
What happens if a Texas family court judge determines that you are an unfit parent?
If a family court judge in the state of Texas decides that you are an unfit parent, then you need to know what can happen next. First, there is no guarantee that your parental rights will be terminated. As with anything in the world of Texas family law, the situation will be assessed on a case-by-case basis. Based on how severe the issue(s) are your parental rights may be terminated. However, by the same token, those parental rights may be maintained to allow you to still have a legal relationship with your children. It all depends on the facts of your case. For this reason, you cannot rely on the perspective of friends or family who likely are not aware of all the circumstances of your case and is instead basing their opinion on what they have experienced personally.
Remember that there is a strong presumption in Texas that it is in the best interests of your child to be able to have an ongoing relationship both with you and with your co-parent. This presumption will be considered no matter what is at issue in your case. The severity of the transgression will be considered, most definitely, but so will the presumption that you and your co-parent should be named as joint managing conservators. If you are a parent who may be considered unfit based on the different circumstances of your case, there are some tips that we can provide you with that may help.
First, having a stable place to live and employment is a good start. Responsibility and good decision making is a huge part of this process. When you show that you can pay rent and have a job then this shows that any problems you may have used to have regarding decision-making could be in the past. Next, when you do have visitation time with your children you need to take advantage of every moment. This means not missing an appointment for something other than a very good reason. If you have people in your life who can vouch for your credibility and your demeanor as a parent, then you can ask these people for written statements to provide to the court.
Your support system is also important at a time like this. We tend to become like the people that we surround ourselves with. If you are hanging around with people who encourage or allow bad behavior, then you are much more likely to engage in bad behavior. If you can find yourself a support system that puts you in good positions and helps you focus your time and energy on your kids, then you can reduce the likelihood of a judge finding you to be an unfit parent.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas Family Law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.