Generally, there is a presumption that parents should be named joint managing conservators of their child unless it would not be in the child’s best interest or there is a history or pattern of family violence.
Typically, regarding best interest, any or all of the following three issues are present when there is a request that the parents not be named joint managing conservators:
- drug/alcohol abuse
- mental health issues
- criminal convictions
However, it should be noted that a less frequently thought of issue can have a dire effect on a custody case. The Texas Family Code has a special provision regarding domestic / dating / family violence and conservatorship.
If a parent has demonstrated a history or pattern of domestic violence, the court is barred from appointing that parent as a joint managing conservator of a child.
There are 2 elements a Court must find in order to grant a protective order—that family violence has occurred and that family violence is likely to occur in the future.
In many cases, practitioners successfully defend against applications for protective orders by showing that family violence is not likely to occur in the future given the specific facts and circumstances of the case. However, practitioners should be extremely wary of focusing solely on the second element as several appellate courts have held that one occurrence of family violence can constitute a pattern or history of domestic abuse and thereby triggering dire consequences regarding conservatorship and possession and access to a child.
If it is legitimately questionable that domestic / dating / family violence occurred, a practitioner should do their best to defeat the application for protective order on the first element, or at the very least, make sure that an order denying a protective order does not have a finding in it that family violence occurred but is not likely to occur in the future.
However, sometimes clients come in the door with bad facts that will have to live with. These types of cases arise where there is obvious evidence that domestic abuse / family violence occurred. Depending on the severity of the allegations, it may be necessary to counsel the client to accept his or her punishment during the first day in court – which is preferable to leaving on a bad note and provides the attorney with the opportunity to utilize an expert to rehabilitate or dismantle those facts later in the case. While the issue of joint custody may be barred statutorily, a history or pattern of domestic abuse / family violence does not necessarily tie the court’s hands with regard to possession and access. If the Court finds that there is no danger to the child’s physical health or emotional welfare and it would be in the child’s best interest, a Court can fashion any possession and access order it deems appropriate.
Best interest and no harm to the child are the theme that should be presented in evidence and argument to the Court. so that a client, while demoted to a possessory conservator, can still have a meaningful frequent contact with the child.
When someone is brought to court under those circumstances, the alleged aggressor is usually defensive. The attorney plays an important role in helping the client move past his or her defensiveness by helping the client realize the court case has little to do with the events that occurred between the parents, but instead centers on the parent’s relationship with the child. The attorneys can arrange the custody agreement so the parents never need to see each other or communicate, and their relationship is no longer the issue. The attorney must make the client recognize that the court must understand what kind of parent—not spouse—the client is, and will form its opinion based on the best interests of the child.
Evans Family Law Firm in Austin
We’ve been board-certified to practice family law in Texas since 1995. Almost twenty years later, we have no intention of changing course. Family law continues to present our team of Austin divorce and family lawyers with new opportunities to help members of our community. Schedule an appointment.