Family violence is a terrible and all too common reality for many families in Texas. The idea of having to live your life in fear of your spouse, significant other, or co-parent harming you physically is something that is an uncomfortable thought for an outsider but it may be your reality as an individual. Going through all these issues may be incredibly difficult but to think that your child may be the victim of abuse like this may even be worse to consider. However, we at the Law Office of Bryan Fagan know that knowledge is power. There are steps that you can take to better your life and that of your family if violence in the household is an issue.
Family violence is an issue that can touch many different areas of a family law case. In today’s blog post from the Law Office of Bryan Fagan, we are going to talk with you about how family violence can impact you in a family law case. This information can be applied to your specific circumstances to help you better understand what you may be going through as a parent so that you can make decisions for yourself and your children that allow you to be well-positioned for the rest of your lives.
Visitation rights in family violence
In Texas, the presumption is that both you and your co-parent should have joint managing conservatorship rights and duties concerning your children. This means that you both would share on a fairly equal basis the responsibilities of raising your children. This does not mean that every single right and duty concerning your children would be the same, but it does mean that the two of you would both play a meaningful role in the lives of your children. The reason for this is that the state of Texas prefers for parents to be able to play this sort of role in their child’s life absent other considerations.
However, this presumption towards joint managing conservatorships may not apply when we look at issues related to family violence. When your co-parent physically harms you or one of your children in your home we call this family of violence. You may have also heard it referred to as domestic violence. Unfortunately, this is a major factor not only for your case but also for the well-being of your family moving forward. The last thing you want to do is put yourself or your children in a position where they have the possibility of being harmed as an option in the home. For that reason, courts are very careful about handing out rights to parents who have shown a history of family violence.
Visitation rights are one of the areas where a violent parent can potentially suffer the most when it comes to having their rights curtailed or completely taken away. These rights and duties of conservatorship are directly related to the sort of visitation rights that a parent will have. In a typical child custody or divorce case, you and your co-parent will be named as joint managing conservators. One of you will have the right to determine the primary residence of your children. Practically speaking, this means that your child will live with the parent who has this right. It is a big deal to be able to select the home where your child lives primarily.
The other parent, known as the non-custodial parent, will have visitation rights concerning your children. Visitation rights allow him or her to have a predictable schedule of when he or she can meet the children. For many parents, this looks like visitation on the first, 3rd, and 5th weekends of each month. Holidays and other periods are split evenly between parents under a standard possession order. However, family violence in the home most likely means that this type of visitation arrangement will not be possible.
A basic rule of thumb to apply to Texas family law cases is that if a protective order has been issued against your co-parent within the past couple of years, then a court will not be able to assign any sort of custody rights to him or her. This means that your co-parent will not be able to take part in the decision-making process relating to your children when it pertains to their health, education, or any other part of their lives. This is a consequence of not being trustworthy when it comes to the safety of your children or the safeguarding of his or her emotions.
If we stop and think about it for a moment, this makes complete sense. How could a judge trust that your co-parent will be able to make good decisions for your children when he or she cannot be expected to make good decisions when it comes to their own emotions and ability to control their anger? Ironically, keeping your hands to yourself and not touching another person when that other person does not want to be touched is a lesson that we teach our children. It makes a lot of sense then that a judge would not consider giving visitation rights to a parent who cannot abide by these basic rules that we teach our children.
Visitation can be granted to parents despite the history of family violence. Above all else, a court would consider what is in the best interest of your children when it comes to assigning visitation rights. Many times, these visitation rights are limited and supervised. Supervised visitation can take place at a neutral site as agreed to by you and your co-parent or even at a supervised visitation facility. Southeast Texas is home to several locations and places where parents can have supervised visitation in a safe environment. Costs associated with these locations are usually borne by the parent who engaged in family violence.
A basic consideration that will be relevant to a family court judge would be whether the proposed visitation could put your child in harm’s way. This could be harm that is physical or even emotional. If the physical harm has to do with prior active family violence, then it is very unlikely that your co-parent would be awarded any type of visitation. On the other hand, emotional violence can also be a factor for the court to consider.
A judge would need to think long and hard about the impact of any violence perpetrated against you in the past and the memories and trauma that could be experienced by your child having to relive those issues each time he or she comes into contact with your co-parent. Unfortunately, this is a reality for families to consider and one that a judge would have to weigh very seriously before assigning any type of visitation, even limited or supervised visitation.
Part of the reason why visitation may be considered at all for your co-parent is because he or she has engaged in therapy or treatment for any number of reasons that may have contributed to their engaging in family violence. Therapy could include psychological therapy, counseling, family therapy, and anger management are any number of courses and classes that can be taken to improve the quality of life for your family and your co-parent. The past behavior of your coparent cannot be excused but it can be treated in many instances. By showing a court that your co-parent is willing to work to improve their mental health and self-control that can go a long way towards helping him or her submit a strong case for visitation.
Supervised visitation is oftentimes an important part of visitation for a parent who has a history of family or domestic violence in the recent past. Supervised visitation involves your co-parent having limited contact with your child in a structured and supervised environment. Ultimately, there are many ways to structure supervised visitation, but we would like to take a moment to talk about some of the more common methods to employ regarding this type of visitation.
There are facilities in our area that cater to parents in family law scenarios. These facilities offer an environment where you as the non-offending parent can have some degree of peace of mind that your co-parent will not engage in bad behavior around your child that could put him or her in harm’s way. These facilities allow for your co-parent to have supervised visits with your children on a specific schedule. That specific schedule is set forth by the court. The costs associated with these supervised visits can be divided between you and your co-parent but are usually paid for by the offending parent. There are structured drop-off and pick-up routines associated with these periods of supervised visitation.
There can also be supervised visitation for your co-parent in a less structured environment such as your home or that of a neutral third party. These can be somewhat more awkward and uncomfortable because they involve your co-parent being in a home environment with you. For that reason, you may want to think twice about agreeing to supervised visitation where a home environment is the site of the supervised visitation. In any event, you should think hard about whether there is a person in your life who could act as a neutral third-party host for these types of visitation sessions. It would need to be someone that both you and your co-parent are willing to work with. This could be a family friend, family member, or other person that both you and your co-parent trust.
in any event, you should be sure that the language you include in your court orders is very clear about how you want these supervised visitation sessions to proceed. The more detail you can fit in and the more specific the language is in the orders the better off for all parties. There are many moving pieces when it comes to supervised visitation given that it is out of the ordinary and not the orthodox means of allowing parents and children to visit with one another. As a result, you should be crystal clear about what the expectations are and how the supervised visits will proceed. Not being detailed in these assessments can mean that disagreements and disputes arise regularly. When you have a parent with a history of family violence the last thing you want to do is put yourself in a position where your co-parent could lose their temper and become angry with you or another person.
Terminating parental rights
At the end of the parenting spectrum is an option that includes the termination of your parent’s parental rights. These types of cases do not come up very much because courts are incredibly hesitant to terminate a parent’s parental rights for any reason. However, there are limited circumstances where termination of parental rights could occur. You can talk with an experienced family law attorney about the circumstances in which parental rights termination may become relevant in your situation. It is difficult to argue that it is in the best interests of your child to have your co-parent’s parental rights terminated. A history of family violence, the failure to take responsibility for their actions, or continued violent behavior are all factors that may allow for the termination of parental rights if you or a state agency like Child Protective Services believes that it is in the best interests of your children.
Family violence and its impact on division of community property
The other area that we wanted to talk with you about today when it comes to family violence and its impact on a family law case is that of community property division. In Texas, marital property is divided in a divorce according to principles related to community property division. In Texas, the presumption at the time your divorce is filed is that all the property you own is marital and thus subject to division. There are ways to overcome this presumption but a good rule of thumb to go by is that property purchased or acquired during your marriage is going to be considered community property.
Family court judges will divide property in a way that is just and right. This is the specific legal standard that a judge would use to divide up marital property. Many people assume that a just and right division of property means that property must be divided equally between spouses. However, a just-in-right division does not necessarily mean an equal division. Rather, just and right division will seek to take into consideration the circumstances of your family and then will divide the property according to those terms.
Family violence in your home will certainly be one of the circumstances that a judge considers when determining how to divide marital property in your case. If you are filing for divorce, then you should allege domestic violence or cruel treatment as a ground for divorce. This will allow the judge to consider that factor when dividing up Community property or assigning parental rights. When the acts of family violence have taken place within the past two years before the filing of your divorce it is an especially important factor for a judge to think about.
Closing thoughts on family violence in Texas family law cases
The safety of you and your family is the most important thing when it comes to assessing the impact of family violence on your lives. Any other considerations come in a distant second place. Hopefully, you have safety for your family at this time. If you do not, know that there are many resources available to you in the community such as women’s shelters, law enforcement, and religious groups who will come to your aid if necessary. Depending upon the ages of your children you should work out a plan to have an escape route in your house if your co-parent becomes violent. Practice this plan as much as you can and have essentials like clothing, medicine, and cash available if you need to leave at a moment’s notice.
You can also consider the benefits of hiring an experienced family law attorney for your child custody or divorce case. Whether you need to have a protective order or temporary orders instituted in your case, working with an experienced family law attorney means that you can receive information and advice that is tailored to your specific circumstances. The attorneys with the Law Office of Bryan Fagan thank you for spending part of your day with us today. We hope that you and your family are safe and that if you need help with anything having to do with the family law world you will contact us today.
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.