In many families, there are more than just the basic concerns about homework, the flu, friends and eating enough vegetables. Unfortunately, I have come to know many families who have been afflicted by abuse in the home. This abuse could take on many forms- drug abuse, physical abuse or even abuse that affects a child's mental health. The problem with these issues is that they can take effect now and impact that child for years to come. If you are a parent who has a spouse who is endangering your child's safety, it is important that you take steps to prevent that harm from occurring.
For these reasons, I would like to spend some time today discussing the issue of abuse in the home. While abuse can take on many forms, the end result is often the same: a child who has an injured sense of self and sense of the reality in which they inhabit. The basic hallmark of Texas family law is that both parents should not be prevented from having a fair opportunity to raise their child and be there physically for that child. However, if abuse is a factor in your child’s life and that abuse comes from a parent, a different discussion will need to take place.
Equal time and access are not positive things when drugs or violence are in play
While a Standard Possession Order allows for parents to share in the responsibilities of raising a child, it also allows parents to share in the possession of that child. Even if you are awarded a Standard Possession Order as a result of your divorce, you will be able to see your child every week. Holiday visitation is shared equally between parents and you will have a month to yourself each summer where you can vacation with your child or just relax at home during the warm summer months.
However, if your spouse is abusing drugs or have engaged in violent behavior in the home it is not a good idea for your child to be around him or her at this time. Supervised visitation is often time ordered for parents who find themselves with problems associated with addiction or violence against family members. If this issue is brought before a court, a judge will not be willing to risk the safety of your child in order to allow your spouse to have extended contact with him or her.
Supervised visitation can occur in a number of locations, but there are specific locations in Houston where you can arrange for supervised visitation to occur ahead of time. Or, a specific location can be utilized like a restaurant, park or another public place. Finally, a private home can be the site for supervised visits. I have also seen requirements for ongoing psychiatric care in order to allow for the possibility of the supervised visits being lifted in the future in favor of traditional visitation periods.
There are no trade-offs considered when the safety of your child is at stake
A former client of ours had an ex-husband who drove down the interstate intoxicated for ten miles with their two-year-old daughter asleep in the backseat. Police had to follow him for two miles before he even noticed that he was being signaled to pull over. He eventually did pull over, was administered a sobriety exam and promptly failed. After that point, he was arrested and our client was called to come and pick the little girl up.
The following Monday this woman called our office to set up a consultation to see what she could do to protect her child. Her divorce orders were a couple of years old and had no precautions in place in the event that her ex-husband drank to excess with their daughter present. She wanted to know how long she could keep her child from him and what sort of protections could be put into place moving forward.
We immediately filed a motion to modify these folks’ divorce decree to allow for alcohol and drug testing at random intervals, as well as for supervised visitation. We wanted to get this case into mediation as quickly as we could because we knew that the opposing party did not have a leg to stand on and should be willing to negotiate rather than prolong this case. Achieving a just result for our client and saving her money were our most significant goals.
In mediation, the mediator for this Montgomery County case immediately brain-stormed a plan with our client and I that we could propose to her ex-husband that involved supervised visits, restrictions on his ability to drive with the child in the vehicle with him as well as periodic alcohol testing. He would be barred from consuming alcohol in the twenty-four hour period before visitation began and could not drink while the child was with him, either.
The alcohol testing is one that catches some by surprise because it does cost money to have these tests submitted. How we worked the costs out were as follows: the first three tests would be paid for by the ex-husband, any remaining tests would be paid for by our client. If the ex-husband passed his first three tests (to occur once a month randomly), he could not be re-tested again without notice from our client. This way the costs were spread out and the opposing party would not be made to continually pay for tests.
The bottom line is this: there is nothing you can do that is as important as protecting your child. You already knew that before reading today’s blog post. However, there are specific legal steps that you can take to protect your child that you would not be able to do otherwise. Before worrying yourself and not doing much of anything to actually protect your child it is a good idea to consult with an experienced family law attorney to see what options are available to you.
Mental illness and possession of a child
If your spouse has been diagnosed with a mental illness you have to walk a very unsteady tight rope as far as being respectful of their right to parent your child, but also aware that this mental illness could impact your child negatively. For you, the concern goes well being just the normal concern that divorcing parents have that the other person is going to raise your child in a way that is different than you had envisioned years before. You are not getting in the way of your spouse by making their mental illness a part of your divorce. You are protecting your child from potential harm.
Make no mistake, by having a mental illness you are not declaring that this condition leaves him or her incapable of participating in the raising and decision making for your child. It can mean that, but for most mental illnesses that I am aware of there is no absolute bar to participating in the parenting process that should accompany a diagnosis. Limited or supervised visits as we had described in the section prior to this one are not always appropriate just because your spouse has a mental illness.
It is not a bad idea, however, to have a professional like an attorney ad litem or an amicus attorney appointed by the court come into your life and investigate the matter fully. A social study can be performed where an assessment can be given of your spouse’s ability to parent your child independent of you. That person assigned to your case may determine that with medication your spouse’s condition is under control.
Recommendations can then be given to the court that language needs to be included in your final orders that require your spouse to maintain their medication regimen until changed by a doctor. Basically- keep doing what you’re doing until a trained medical professional can come in and make a change should the need to do so arise. In the event that something were to happen where your spouse engages in behavior that puts your child at risk, you can also write something into your final decree of divorce that allows you to take control of the situation and protect your child.
The other end of the spectrum is an unfortunate possibility as well. If your spouse does not want to take control of their life as much as possible (or is unable to do so), then you may be forced by the circumstances to pursue supervised or limited visitation with your child and that parent. Again, this is not ideal. A judge will not relish restricting visitation by a parent with their child. However, some conditions are so severe that exposing your child on a consistent basis to a person with an altered mental state can be unhealthy.
These key concepts are ones that you want to make known to your attorney early on in the case. Your lawyer can then see to it that the appropriate wheels are set in motion if a professional person needs to be appointed to make recommendations to your judge.
Determining parentage of a child in Texas
All of the issues that we have been discussing the past few days are relevant only when both parents of a child are known. Otherwise, there can be no discussion of dividing parental rights. If you are a mother and do not know exactly who the father of your newborn child or soon-to-be child is, there are some steps that you can undertake to remove any doubt. Remember- you are protecting your child, protecting yourself and allowing the child’s father to play a role in your child’s life by determining who the biological father of your child is.
It goes without saying that a child can be born without knowing who the father is. While there are men who are thought to be more likely than others to be the father, there is no way to tell just by looking at your child or by merely piecing together recollections from the time that your child was conceived. Paternity is based on more than just allegations about remembering that you were with a man around nine months before your child was born. Certainly, that is where a paternity suit can begin but it usually will not end up there.
A court will presume that your husband is the father of your child, absent evidence to the contrary. This is why you do not need to have your husband sign an Acknowledgment of Paternity at the hospital when your child is born. If you are married the law presumes that your husband is your child’s father.
This usually works out fine, but in the event that your husband is not the father of your child there need to be additional steps taken in order to determine who the biological father of your child is. If you are reading this as a husband of a woman and you are not sure that your wife is carrying your child you need to be aware of what steps to take in this situation. It is not unheard of for a man to be forced legally to care for a child who is not his biologically speaking.
We will pick up with this topic where we left off today in tomorrow’s blog post from the attorneys with the Law Office of Bryan Fagan.
Questions about supervised visitation and paternity? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we covered today, please do not hesitate to contact the Law Office of Bryan Fagan. Our office offers free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about your particular legal situation. We take a great deal of pride in representing people in our community just like you and look forward to being able to share with you what services we can provide for you and your family.