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Domestic Violence in Child Custody Cases: How will your judge view this issue?

When it comes to family law cases there is no circumstance that is more sad, infuriating or dangerous than that of domestic violence. It is something that, thankfully, occurs in a rather small percentage of cases (based on my personal experience as a practicing attorney) but to the extent that it does occur it is still too frequent. The families that are affected by domestic violence may not even know the true severity of its impact until years after the events occur.

If you are the victim of acts of violence there are a number of concerns that will go through the mind of your attorney. To begin with, your attorney will need to make sure that you and your children are safe. This could mean trying to find you a place to stay for a short period of time or working to obtain an emergency order from a judge that bars your spouse access to your home. If you are not safe or your children are not safe then there is nothing else that matters to your attorney.

Next, there will be legal consequences to the actions of your spouse. We have already touched on that your attorney may need to seek an order from the judge that allows him an opportunity to restrict your spouse's visitation with your children as well as bar him from your residence if the violence has occurred during the pendency of a divorce case. Temporary Restraining Orders (TRO) can be in effect for up to four weeks while you wait to be able to approach the bench on temporary orders hearing.

How are your children affected by domestic violence?

It is not uncommon if you are dealing with a situation where your child was home with you when the act(s) of domestic violence was being perpetrated against you. Sadly, it may even be the case that your child was a victim of the violence himself.

This is simply anecdotal evidence, meaning that I have not done research to substantiate this belief, but it is my experience that if a person is willing to commit an act of violence against their spouse or against someone that they are in a relationship with, it is more likely than not that they are also willing to commit acts of violence against their own children. This should cause you to take a moment to consider just how integral it is that you handle this situation as well as possible.

I have been involved in more than one child custody case where a well-meaning child (usually a teenaged son) was himself injured in an attempt to protect their mother from the abuse of their father. The people who perpetrate these crimes do not necessarily intend to inflict harm upon their children, but the children are often collateral damage nonetheless.

Psychological effects of family violence on children-witnesses

One of the consequences of your child witnessing family violence in their home is that their behavior may soon take a turn for the worse as a result. Even if you don’t believe that your child is aware of the violence has occurred, it is likely that they have. We don't give children enough credit for being aware of the events that occur in their surroundings. The alternative to a circumstance like this is one where your child is not only aware of the situation that is occurring but is forced to keep the information about the abuse to themselves. This presents a two-pronged problem. The first being that the psychological effects of having to keep a secret like this can be quite severe. The second is that if your child were to say anything about the abuse it is likely that you or your child could be victimized again as a result of your spouse having been made aware that a prior incident was discussed with a person outside your family.

A long term negative consequence of your child having been exposed to family violence in your home is that children who see violence in their home subconsciously come to see violence as a reasonable outlet for their own anger and frustration. Control and power are gained through domestic violence and the increased likelihood that your child resorts to this type of behavior are a serious concern that you should be aware of.

Your judge will look closely at your child's role in these unfortunate circumstances. Has he been a direct victim of domestic violence? Has he witnessed violence in the home? Has your child been home when the violence has occurred through not having witnessed any of the violent acts himself? The judge will need to know the specifics of the situation in order to gauge the likely harm suffered by your child and the type of response that she needs to take a result.

What domestic violence will impact your child custody case

Now that we have had an opportunity to lay out what domestic violence is and how it can impact your family, we should spend some time on how acts of domestic violence can play a role in your child custody case.

When it comes to child custody cases that do not settle easily, some of these cases are ones where domestic violence has occurred. The extent to which domestic violence has occurred can be seen in these cases and usually will persist into the case. The heightened stress and anxiety surrounding these type of cases can cause an atmosphere where violence becomes more likely.

Attorneys see domestic violence used a tool by abusive spouses in order to maintain some degree of control over the behavior of a spouse who is seeking a divorce or change in their child custody orders. While they are no longer able to control their spouse through fear while in the home, an abusive spouse will take every opportunity to exert some degree of control over the person as much as possible.

Re-victimization is possible as a result of a pending child custody case

In the event that you tell your spouse that you are going to file for divorce or file to change the custody agreement in a modification, your spouse can use violence as a means to prevent you from removing your children from him. Or, it could be that you are asking for spousal maintenance in your divorce. I have seen some cases where a husband will act violently towards their wife in order to prevent her from asking for spousal maintenance in addition to primary custody of their child.

Why a person who commits acts of family violence is not fit to act as a parent

It is not enough to simply be concerned with your child’s well being. You cannot physically harm your child’s other parent and be able to turn around and act like you are concerned with your child’s best interests. Remember that the state of Texas’ presumption is that it is in the best interests of your child to be able to have a relationship with both of their parents. Given that your child’s relationship with their other parent is just as important as their relationship with you it is critically important to be able to respect your child and you’re their other parent’s well being.

Next, when you set up a pattern of abuse and control of your spouse during your marriage, that is a pattern that can persist even after you move out the home. There are psychological impacts of family violence that I have already touched on that are involved in situations like this. You can remove yourself from the home but the effects of your behavior can be experienced long after your exit.

Finally, your children can often be caught in the middle of acts of violence. When you hurt your spouse you do so to seek control over him or her. Because your children are valued so highly and loved so much by your spouse it is not out of the question that you will attempt to utilize them to further their goals of emotional and physical control over you.

What custodial evaluations are made by judges in the event that domestic violence is a factor in your case?

If you are in the unfortunate position to have to deal with family violence during the middle of a child custody case then you need to be aware of how a judge is likely to view this circumstance. Specifically, a judge will look to how the acts of domestic violence have affected your children, how the domestic violence reflects on the ability of your spouse to act as a parent, as well as how the domestic abuse may have sexual, physical and/or emotional layers to it.

Finally, your judge will consider a range of options when it comes to limiting your spouse’s parental rights and ability to visit with your child. If your spouse has a long history of domestic violence then it is probable that he will have his visitation with your child severely restricted. This goes against the public policy of Texas that both parents should be able to play meaningful roles in the upbringing of their child.

A supervised visitation is an option that many judges choose to implement in cases that involve family violence. A third party, the neutral site is selected where your spouse and your child can be observed and supervised during short periods of visitation. These community programs that exist across southeast Texas would be more likely to succeed than simply having a friend or relative do the supervising for you and your spouse.

To what extent will the judge support the non-violent parent?

You are in a difficult position within a child custody case if you have been the victim of the acts of domestic abuse. Not only has your own sense of stability and safety been turned on their heads, but you have been made to assume a role in your case where you are at a heightened sense of protection when it comes to your child. Are you willing to compromise on visitation issues or (understandably) will you want to punish your spouse and restrict the frequency by which he can visit with your child?

What happens if sexual abuse allegations have been made?

Sexual abuse is not as easy to detect as physical violence. If the sexual abuse has been perpetrated against a child it can be even more difficult to detect due to the inability of children to distinguish between proper and improper behavior in this regard. If your spouse or significant other has been found to have molested your child then supervised and/or extremely restricted visitation is the most likely result of your child custody case. I

t is unlikely that a friend or a family member could administer these supervised visitation settings. Rather, third parties will likely be called in to supervise these visitation sessions. No overnight visits, shorter visits in general and other protections for your child are reasonable expectations to have in situations like this.

Mediation in contested child custody cases- tomorrow’s subject matter from the Law Office of Bryan Fagan

No matter how difficult the issues are in your particular child custody case, it is likely that the judge will want you and your spouse to attempt to mediate your case at least once prior to coming to a trial. In tomorrow’s blog post we will cover this subject in greater detail in order to illustrate what role mediation could play in your case.

If you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. These consultations are a perfect opportunity for you to ask your questions and to learn more about how our office can assist you and your family in whatever circumstances that you find yourselves in.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers

The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX Child CustodyLawyersright away to protect your rights.

Our child custodylawyers 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 child custodycases in Houston, Texas, Cypress, Klein, Humble, KingwoodTomballThe Woodlands, the FM 1960 area, or surrounding areas, including Harris CountyMontgomery CountyLiberty County, Chambers CountyGalveston CountyBrazoria CountyFort Bend County and Waller County.

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