Other than the fear of being investigated yourself by CPS for having committed a neglectful or abusive act against your child, one of your biggest concerns as a parent may be the possibility of your spouse being investigated for having done so. You and your husband or wife have raised your children together as a team but now stand to be separated due to these accusations. How can you make a decision between your spouse and your children? Would you consider asking your spouse to move from your home if it meant being able to keep your kids? This is the topic that we will discuss in today’s blog post from the Law Office of Bryan Fagan.
Should you get involved in a CPS case if you are not named as an offender?
This is a question that I have received recently from a potential client and I wanted to address it as a result. In this day and age where it is much more common to have parents to a child not live together than in years past, it could happen that your child would be able to come to live with you in your home if he or she has to be removed from their own home. You could ask CPS to name you like the temporary managing conservator of your child for the duration of the CPS case.
Things become much messier if you live with the parent who is accused of committing the neglect or abuse. Even if you did not know anything about the alleged abuse or neglect, it is possible that CPS could name you as an offender if you allowed the abuse or neglect to occur instead of stepping in to stop it from occurring. This may be surprising to learn, but it is possible for CPS to arrive at this conclusion.
Since you may be implicated by association or by your failure to take appropriate action, it is crucial that you step up to the plate and assert your parental rights to defend yourself from potential accusations. If your spouse’s parental rights are in jeopardy of being terminated as a result of the CPS case that may be your future as well. You need to know how to protect yourself in this situation.
Get involved with a CPS case if they have not brought you into the proceedings
If you know that a CPS case is ongoing that involves your child but you have not been informed of any activities related to that case you need to let CPS know that you want to become involved. Contact the CPS caseworker who has been assigned to your child and let them know who you are and what role you would like to play in the case. You should provide them with all of your contact information. Finally, if you would like your child to be placed with you then you need to inform CPS of this, as well.
As a parent who was not listed in the report that CPS is responding to and as a parent who played no role in the alleged incidents of abuse or neglect, you have all the rights that any other parent would have under normal circumstances. You have the right to hire an attorney to represent you and to present evidence in any hearing where the placement of your child is at issue.
By the same token, you do need to cooperate with CPS. Even though you have not done anything wrong in conjunction with the CPS investigation, as the non-custodial parent of your child you have the ability to have your child placed with you. This is assuming that the court can find no issue with your being named as the temporary managing conservator. CPS may need to conduct a home study of your home in order to determine that this kind of placement is in your child’s best interests. Otherwise, you are expected to make yourself available to CPS and the judge in this case.
Do you have to do anything else to win primary custody of your child?
CPS may ask that you work a Service Plan of your own in order that you can be named as the primary managing conservator of your child. On a practical level, what this means is that you are expected to have a home that is clean, safe and appropriate for a child to be living in. Communicating to the court that you are capable of keeping your child safe and that you will protect him or her from the offending parent is crucial. It is up to you whether or not you want to hire an attorney to help you communicate this to a court.
Finally, if you have been paying child support you will need to contact the Office of the Attorney General in order to get your child support to stop as a result of your being named as the primary managing conservator of your child. If you do not do so, you will be expected to pay child support even though your child now resides with you primarily.
What happens if you do not know who the father of your child is?
It happens that in CPS cases from time to time the father of the child involved in the investigation is unknown. Or, you may be the father of a child going through a CPS case and not even know that the child is yours. Finally, you may have been told by a woman that you are a child’s father but are unsure of the truthfulness of this statement. If a CPS court determines that you are the legal father to a child, then the following information is important to you.
What does “legal father” mean?
Before you can become involved in a CPS case, the court will need to determine that you are the father of the child. Since a child can only have one legal father this means that all other men must be eliminated from consideration. Once you have been determined to be the child’s legal father you may be brought into the CPS case as a party. Keep in mind that if you are a child’s step-father then you will not be brought into the case unless you have adopted the child.
Fathers have rights to make decisions for a child and to receive information regarding that child. However, fathers also have responsibilities in regard to providing for that child’s well being and caring for that child’s basic needs.
It is presumed that if you are married to a woman and that woman gives birth then you are the father to that child. Your name will be put on the child's birth certificate to reflect this presumption. This will occur unless you tell someone that you are not the father of this child.
On the other hand, if you are not married to the mother of the child when the baby is born then no such presumption in place. Your name will not be placed automatically on the birth certificate, nor will you be presumed to be the child’s legal father. In order to become the legal father to your child you must do one of the following:
-sign an Acknowledgment of Paternity (AOP). This is a form that does exactly what it sounds like- acknowledge that you are the father of a particular child. The form will be filed with a state agency in Austin once it is completed
-contact a local child support office and sign an order that establishes your paternity of the child and sets up child support to be paid by you towards the benefit of your child
-you can file a petition in family law court wherein you acknowledge paternity and ask the judge to name you as the legal father to the child. When you are in court you can ask a judge to order that a paternity test be administered at that time
What happens when you are named as an alleged father in a CPS petition?
The term “alleged father” means that you are a man who the mother of your child believes could be the biological father of her child. If you have had limited to no contact with your child or even had no idea that your child was even born then you would fit in with this category. A CPS court will need to make sure that you are the biological father of the child before you can become a party to the case.
The simplest way to do so is to have a judge order a paternity test be administered. This is a type of DNA test where samples of your spit and that of your child’s and their mothers are taken and compared to one another. Assuming that you are the father of the child then you will be named as such in the CPS candy will be allowed to enter into the case.
CPS will work with you to set up a time and place for the test to be conducted. The Office of the Attorney General will be the body who conducts the exam. You will be informed by the CPS caseworker of the results of the test whenever they are ready.
In the event that you are named as the legal father to a child and you do not believe you that you are, you should ask the court to have a DNA test administered. Mistakes must have been made in establishing your paternity. Basically, you need to be able to present evidence that you are not the biological father of the child. Hiring an attorney to do so is a great idea.
What if you are not the legal father to the child? Do you still get a lawyer appointed to you?
If a child involved in a CPS case is not found to be your biological offspring, and you are not the legally designated father to the child you will not be appointed an attorney to represent you in the CPS case. CPS will attempt to locate you if you are not easily tracked down. The court may appoint an attorney to the case in order to make sure that CPS is doing their due diligence in attempting to track you down. The attorney will likely have to conduct their own research in attempting to locate you, as well.
Once the court is satisfied that everything possible has been done to locate you, the court will likely dismiss the attorney from your child’s case. If you are located successfully and you are determined to be the legal father to the child then an attorney may be appointed to represent you in the event that you cannot afford to hire a private attorney. This is your opportunity to tell the lawyer what you want to see happen as far as the custody aspect of your attorney’s case.
What to do if you are the parent to a child who is incarcerated or if you are under the age of 18?
In tomorrow's blog post from the Law Office of Bryan Fagan, we will discuss the topic of how to handle a CPS case if you are either under the age of 18 or are incarcerated. You do not want to miss this blog post because we are going to share with you some information that I don't believe exists in many other places on the internet.
In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and have your problems addressed in a comfortable, pressure-free environment. We look forward to getting the opportunity to serve you and your family.
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Other Articles you may be interested in:
- CPS and how The Law Office of Bryan Fagan, PLLC can help
- Child Custody Basics in Texas
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- 10 Quick Tips About Parental Visitation
- Texas Parental Visitation – Texas Standard Possession Orders in Harris and Montgomery County, Texas – Part 1
- Supervised Visitation in a Texas Divorce: Can it happen to me?
- Texas Parental Relocation
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- Family Law Cases in Texas: Examining the steps in a Child Protective Services case
- Texas Family Courts: Child Protective Services, Part Two
Law Office of Bryan Fagan, PLLC | Houston, Texas CPS defense Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding CPS, it's important to speak with one of our Houston, TX CPS defense Lawyers right away to protect your rights.
Our CPS defense lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles CPS defense cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.