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What a judge looks for in a child custody case involving family violence

If you’ve read through the blog posts on our website for a long enough period of time I’m willing to bet that you have come across a post where we have suggested that you try to put yourself in the shoes of your child’s other parent, or your ex-spouse or whatever person is on the opposite side of you in your family law case. Seeing things from a different perspective can cause you to understand their positions and may even eliminate the need for you to move forward with a legal case altogether.

One person’s shoes that I cannot recall that we have ever suggested for you to look at a case from their vantage point is a judge. Maybe we haven’t done this because no attorney at the Law Office of Bryan Fagan, PLLC has ever served as a judge. For whatever reason that we have not done so, I think it is a big mistake. Ultimately the judge is the person that will be making a decision in your case if you and the opposing party are unable to work out a settlement before needing to go to a trial.

The purpose of today’s blog post is to examine a family law from the vantage point of the judge. Specifically, I would like to look at child custody cases that involve circumstances where a physical or emotional injury could occur in your child.

These are some of the more difficult cases for a judge to issue a ruling on and ones where the best interests of your child need to be considered more than anything. A judge will need to review all the evidence submitted to him or her, make an educated guess as to whether or not abuse or neglect is likely to occur and make decisions that place the child’s safety at the forefront.

The effect of violence on the life of a child

Children who witness violence in the home are likely to be impacted on a long-term basis. The difficult part for a judge to determine is just how those particular circumstances have potentially impacted that particular child. When you are being abused by your spouse and your child sees that he or she is now under the control of fear that your abusive spouse has laid upon you.

Whether your child has been the victim of abuse or has witnessed it occur to you or another family member, a judge will need to figure out what levels of protection to provide to your child. It is not a simple process to determine the extent of the damage that has been done to your child from witnessing abuse.

There is only so much that a judge can gather about a child who is not physically before him or her in the courtroom. The judge will be relying upon the evidence presented by both parties to your case.

What behaviors might a child who has suffered abuse display?

Again, all children are different and all children display emotions in unique ways. However, from my experience in handling family law cases I have seen that children that have been abused will often be better behaved with the abusive parent and may actually act more friendly towards him or her.

Friendly may not be the exact word that is appropriate here but that child may even tell the nonabusive parent that he or she prefers the abusive parent. If the child seems to be uneasy without the abusive parent near to them then that is another sign that the child is being abused.

What exactly do the best interests of the child mean in a family law case?

To be in a living situation where your child is placed with an abusive parent is not in your child’s best interests. This may seem like a no-brainer but for many families, it is a difficult concept to comprehend. Judges have an opportunity to witness the parenting behaviors of many, many different kinds of families and as a result, come across some folks who believe that children should not be separated from their families under any circumstances. After all- if your child is being abused by their other parent shouldn’t that be an issue that you and the parent decide between yourselves?

In a way, yes. A judge will understand that you as the nonabusive parent are the best possible resource available to a child who is suffering from abuse at the hands of a parent. This type of abuse is unique in that the abuse is coming from one of the two people in the world who is trusted with caring for the best interests of your child.

If there is a way to arrange visitation with the abusive parent a court should pursue this option, but not at the risk of further harm being done to your child. This should absolutely be avoided at all cost. Supervised visitation will likely be the only safe option that is available, and depending upon the child’s mindset and the willingness of the abusive parent to be supervised at all this may not even present itself as a viable alternative to typical visitation methods.

A judge will not take risks with your child’s well being. If you are able to articulate to a judge that there is ongoing abuse by your child’s other parent then a judge should not allow your child to live with that parent and may not allow that parent visitation with your child at all.

With that said, a question that needs to be asked is how will a judge in Texas actually define abuse and what standard will be used? Sure, the Texas Family Code contains a definition for abuse but on a case by case basis how will your judge likely perceive abuse?

Just what does “abuse” actually mean and how will a judge identify it?

Physical violence is not the only definition of abuse that is relevant in a family law case. Abuse is the physical manifestation of the desire to control the behaviors of another person. By acting abusively, your child’s other parent is seeking to control you and/or your child’s behaviors.

This can be done through physical, emotional or sexual means. While some violence in the home may be sporadic or based on spur of the moment decision making, much of it is pre-planned and done to further a goal related to the control of his or circumstances.

The judge assigned to your case may view a one time incident of physical abuse as being meaningful and order your spouse to have only supervised visits with your child until counseling and anger management classes can be attended.

In some situations, a judge may view a one time outburst as an isolated incident and not predictive of any future violence. I would expect that most judges would take very seriously any violence in the home whether or not it was against your child or not. It is not a stretch to say that violence against you as a spouse could easily become violence against your child as well.

The big thing to consider is that no matter what your judge says in the initial stages of your divorce or child custody case in relation to family violence and risks to your child, the actions of an abusive spouse will have an affect on how a court ultimately rules on custody, visitation, possession, and access. If your spouse does not take the judge seriously and does not address their issues with anger and abuse he or she will almost surely lose much of their right to be in possession of your child after the family law case has concluded.

More on how judges view abuse in family law cases in tomorrow’s blog post

Thank you for taking an interest in this subject. As I mentioned at the outset of this blog post, the only person whose opinion on your family law case really matters is the judge. As a result, I think having an understanding of a judge’s likely approach to your case is important. Please stay tuned tomorrow to learn more.

In the meantime, if you have any questions about family law in Texas please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our licensed family law attorneys are available six days a week to take your call and arrange a free of charge consultation for you in our office.


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