How Domestic Violence May Affect Child Custody Determinations
An allegation of domestic abuse has the potential to have the greatest impact on child custody and visitation rulings. In Texas, the family court must, by law, consider all domestic violence concerns before awarding child custody (now known as “managing conservatorship” in Texas). If you have been charged with domestic violence, the court has the authority to deny custody, and to place significant limits on your right to access or possession of your minor child. The court will carefully review the allegations to ensure that they have merit, and will not curtail custody or visitation if the evidence indicates that the allegations have been made in an attempt to punish an ex-spouse, or to curry favor in a custody or visitation hearing.
As in other states, the courts in Texas always seek to give priority to what is determined to be in the best interests of the minor children. The factors evaluated by the court in making this decision may include documented history of spousal or child abuse, as well as other concerns, such as:
The respective stability of each household
The mental health of each parent
Any personal behaviors of each parent that may negatively affect the child (substance abuse, gambling, sexual promiscuity)
In Texas, the courts follow a rebuttable presumption that it is not in the best interests of a child to grant custody to a parent who has committed domestic violence. This presumption will be enforced, even if you negotiated or mediated a joint custody agreement, if the court determines that the history or threat of domestic violence influenced a parent’s decision to enter into such an agreement.
An Overview on Child Support Obligations in Texas
One of the most hypersensitive issues affecting separated and divorced parents is financial support for children. Child support disputes are not uncommon. The mistake many parents make is taking an action, like stopping payments, without considering the consequences.For example, a custodial parent may feel visitations can be denied to non-custodial parents who fail to pay support. Cutting off visitations may punish a non-custodial parent in arrears, but children also suffer by being deprived of a parental relationship. Texas family courts deal with these issues separately.
A parent, with or without visitation privileges, can be ordered to pay support. Remember, support is a parental obligation. Visitation statuses do not affect the ongoing needs of children.
Child support orders establish rules parents must follow. Child support modifications are possible, with a court’s approval under the proper circumstances. A job loss can be a valid reason.
Unemployed parents often skip child support payments rather than work within the legal system to modify support orders. A better option is to contact the Child Support Division of the state Office of the Attorney General or Family Court.
Getting the support modification ball rolling quickly is important — child support payments do not change until a court approves modification.
Child support modifications are subject to conditions and may be sought by custodial or non-custodial parents. Support orders in effect for less than three years old cannot be changed. Whatever change in circumstances drives you to request modification must qualify as “substantial” or “material.”
REMEMBER: A failure to pay child support can lead to a contempt charge and possible fines and jail time.
When noncustodial parents cannot pay the child support payments that they have been ordered to make, they need to contact the court clerk and the Office of the Attorney General right away. The court does not reduce or reimburse payments if parents fall behind on providing the funds, and notifying the OAG or court clerk does not automatically result in lower monthly payments. To achieve this, the parent needs to file for a modification to the child support orders and obtain a new one.
Noncustodial parents could qualify for child support order modifications if substantial changes have occurred in their lives and are affecting their ability to make payments. There are two main criteria considered for a modification. The child support order must be at least three years old, and the amount of the payments must differ by $100 or 20 percent compared to what the parent would pay if the order is changed.
One reason why noncustodial parents may seek modifications to child support orders is the loss of employment. The court might require parents in this position to demonstrate that they are searching for other jobs or are part of employment training schemes.
As soon as noncustodial parents lose their jobs and are unsure of when they could obtain employment again, it may be in their best interests, as well as those of their children, to seek a child support order modification. Doing so could help them avoid being fined or even imprisoned.
Family law matters are not something that courts take lightly, especially when there is a child involved. When parents are battling for custody of their child, there are several things that the courts will look at to help them make the right decision. A parent’s income and physical condition are both very important to the courts, but so are things like the child’s wishes and who has acted as the primary caretaker. Of course, before they can factor this in, they will have to determine who the primary caretaker is by looking at what responsibilities each parent has taken on.
When trying to determine which parent is the primary caretaker courts will look at which parent is responsible for the following:
• Planning and preparing the child’s meals.
• Grooming, bathing and dressing the child.
• Assisting with the learning of reading, writing and other skills.
• Purchases clothing and other necessities.
In many situations, there is one parent who has taken on all of the responsibilities, even though both should be contributing. This important factor could be what helps the court make its final decision in your case. However, just because the courts will look at who has been the primary caretaker, doesn’t mean that the other parent has no chance of being awarded custody.
Resolution around child custody cases are difficult for many parents. They want what is best for their child, but what they feel is best may not be similar to what the judge decides. That being the case, parents will want to work hard to prove that they are the best fit to be primary caretaker and deserve custody.
Remember, ultimately the Court will do what it believes is in the best interest of the child.
4 BASIC STEPS IN TEXAS DIVORCE CASES
- Filing the petition
One of the parties must first file a petition with the court called the “Original Petition for Divorce” (along with paying the requisite court fee). This petition essentially starts the divorce process. The appropriate jurisdiction where the petition must be filed will depend on the length of the residence of either of the parties. After the petition is filed, the court clerk will assign a case number.
- Legal notice
After the first party, now known as the Petitioner, files the petition, the other spouse, now referred to as the Respondent, must be provided notice; simply telling the other spouse that a divorce has been filed is insufficient. Depending on the circumstances, the Respondent can either be served-an action where he or she is provided legal notice-or sign a Waiver of Service if he or she has agreed to receive notice. The waiver does NOT mean that the signer agrees to the allegations in the Original Petition, however.
- The hearing
A petition for divorce generally will require at least one hearing to make a final decision on all of the issues in the divorce, such as property and debt distribution, and child custody arrangements, among others. During the hearing, the parties present evidence to the court on their behalf.
However, if the divorce is uncontested and the parties have already come to an agreement on all of the issues, the non-filing party may not need to attend the hearing.
- The final decree
Once the issues are all decided, the final divorce decree is signed. Getting to this step can take months or take very little time if the situation is amicable. However, it’s important to note that many states require a waiting period before a divorce decree is signed. The “cooling off” period in Texas is 60 days. Certain jurisdictions also have stipulations on how long parties must wait to get remarried.
When a parent receives notice of a court hearing, there are some important things that they should know about the process. By understanding the rules, Texas parent can avoid multiple potential problems.
People should not think that they can simply ignore the court documents that have been served on them. If people do not show up, the court may issue custody, paternity and child support orders against them anyway. If a person is unable to attend on the scheduled date, he or she should contact the court and try to get the date changed. The person should also make certain to ask about how to file his or her response to the document that he or she received.
People should be aware that courts normally will not consider such things as purchasing diapers for children as a part of child support. Courts generally tend to view these types of direct payments as gifts to the children. When people go to court, they will have their cases heard by judges, and their hearings may last for a day. They have the right to retain lawyers to help them with the process. Parents should tell the courts what they’d like to see happen, and the judges will take that into account when they issue their orders.
Parents may request visitation with their children from the courts as well. In many cases, it is possible for parents to come to an agreement through negotiations or mediation, helping them to save time and money.
Child Custody and Domestic Violence
If you are in a violent relationship, you have a different set of issues to consider when you separate or divorce, especially in relation to your children. Here are some things to keep in mind to help you and your kids make a safe transition.
Keep Good Records
As long as you are still living with your spouse or partner, keep careful records of every incident of physical or emotional abuse that involves you or your kids. Write down the date, time, and place of every event, along with a description of what happened and any injuries to you or your children. These records will be a great help to you if you have to go before a judge to ensure that you and your kids are protected from the abuser.
Immediately Get Legal Custody of Your Children
If you have to leave home quickly with your kids to get away from an abusive spouse, go to court right away for an emergency protective order that both gives you custody of the children and requires your spouse to stay away from you.
Keep in mind that the emergency custody order will be temporary. Making a longer-term plan for custody of your children will be part of your divorce proceedings — or separation process if you are not married to the other parent. Whether short or long term, a judge will make a decision about child custody based on what the judge believes to be in the best interests of the children. State law determines the factors that a court will consider, but the safety of the children and any history of domestic violence will be a significant part of the equation.
It’s not unusual for a violent/abusive parent to get visitation rights. If it’s appropriate, however, you can ask for the visitation to be supervised or for the court to require that the other parent not drink or that certain other people can’t be around the kids.
You can make arrangements to deliver the kids at a neutral pickup site or to have third parties pick up and drop off your kids. If you are dropping off the kids yourself and you don’t feel safe, you can agree to meet at the local police station, a restaurant, or some other very public place.
You can also ask the court to appoint a supervisor for the visitation.
Getting Legal Help
Child custody and visitation issues can be difficult in any divorce or separation, but a violent relationship between you and your children’s other parent will make matters more challenging. If you have the resources, you should hire a lawyer to help you make the practical transition out of the abusive relationship. A good family law attorney can help you make the right choices for you and your kids.