A pattern of family violence can have a significant impact on custody issues in Texas. In Interest of DM, a Texas appellate court considered the impact of family violence in determining who should be managing conservator for children.
The father and mother appealed from the trial court’s order related to their parent-child relationship to three of their four children. They argued there was insufficient evidence to support a finding that having a joint managing conservatorship over the three children would impair their emotional development or physical health.
The couple’s first child was born in 1998, and the second was born two years later. When they were six and eight, their parents started using methamphetamine, sometimes while the kids were in the house and on a daily basis. The mother was diagnosed with bipolar disorder and tried to kill herself six times, blaming the father and wanting the kids to know this.
The father got a protective order against her, but she violated the order and was placed on deferred adjudication community supervision. During the protective order’s application, the father was reported for neglecting the kids and using methamphetamine. He refused to take a drug test and kept the kids for one year before reuniting with their mom. They had another child in 2010.
A few years later, the father pushed the mother during her pregnancy and also put her in a chokehold. She bit him and was arrested for assault. They had another baby in 2014. The father was later arrested for hitting the mother and pushing one of the kids when the kid tried to intervene. The father was convicted of assault causing bodily injury to a family member.
The parents went to get help from DFPS for their issues. The social workers filed a SAPCR and asked for the emergency removal of the kids. The children were ordered removed, DFPS was appointed temporary managing conservator, and the father and mother had limited access. Two of the kids tested positive for meth after being removed. The violence continued after the kids were removed.
The trial court continued the temporary managing conservatorship but also appointed an aunt and uncle to be among the kids’ temporary possessory conservators. Meanwhile, the parents went to a halfway house, where they stopped taking meth. They moved for a monitored return of the kids. However, a DFPS conservatorship supervisor testified that they hadn’t shown they could give the kids stability. The trial court’s final order found that appointing the parents as managing conservators would impair their health and development, and it wouldn’t be in their interest to appoint a relative. Although the parents were appointed as possessory conservators, they were only given supervised visits and had no physical possession. DFPS’ SAPCR was dismissed without prejudice.
The parents appealed. The appellate court explained that when looking at children’s best interests, the trial court has to consider numerous factors, including the parents’ ability to give the kids a safe environment, the kids’ needs, the present and future danger to their emotional or physical needs, stability, and the need to stop constant child custody litigation.
The lower court is supposed to presume that it is in a child’s best interest for the parents to be appointed the sole managing conservators under Tex. Fam. Code Ann. § 153.131. However, the presumption can be rebutted if evidence shows this would significantly impair a child’s emotional or physical health. The presumption is removed altogether if there is a credible history of family violence that involves the child’s parents. In fact, if there’s credible evidence of past violence, the parents cannot be appointed as joint managing conservators. The court also can’t give a parent access to a child if the evidence shows that more likely than not, there was a history of family violence in the two years before an SAPCR was filed.
The appellate court reasoned that the parents’ history of family violence justified the decision of the lower court. They affirmed the trial court’s final order, finding that evidence relevant to a best interest finding supported the order.
If you are concerned about child custody and parental rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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