www.txcourts.gov/media/478288/domesticviolencebenchbook.pdf
http://texaschildrenscommission.gov/media/84161/2019-bb-master-final-online.pdf
http://texaschildrenscommission.gov/media/84161/2019-bb-master-final-online.pdf
6.Presumptions Involved in Conservatorship
a.Parent Should Be Appointed as Managing Conservator
Unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. A finding of a history offamily violence involving the parents of a child removes the presumption. Tex. Fam. Code§ 153.131(b).
b.Parent With History of Domestic Violence of Sexual Abuse
In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code§ 153.004(a).
Effective September 1, 2017, Tex. Fam. Code § 153.004(e) states that it is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present neglect, abuse or family violence by that parent, or any person who resides in that parent’s household or who is permitted by that parent to have unsupervised access to the child during that parent’s periods of possession of or access to the child. Tex. Fam. Code § 153.004(e).The statute further provides that courts may consider evidence of a history or pattern of past or present child neglect, abuse or family violence by a parent or other person, as applicable. Tex. Fam. Code § 153.004(f).
c.Parent Should Be Appointed as Possessory Conservator
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the child. Tex. Fam. Code§ 153.191.The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. Tex. Fam. Code§ 153.004(c).The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
THE TEXAS FAMILY VIOLENCE BENCHBOOK
The purpose of this Benchbook; to set out the Texas and federal laws on family violence and to consider them with the impartial and unbiased view expected of a judge. The readers of this Benchbook are encouraged to use the material herein to begin or continue a critical analysis of how the legal system can best address the problem of family violence.
7.4 SAPCR conservatorship awards
7.4.1 Sole or joint managing conservator.
Absent a finding that it would not be in the child‘s best interest, there is a presumption that both parents should be appointed as joint managing conservators of a child. In determining whether a party should be appointed as the sole or as a joint managing conservator, the SAPCR court shall consider:
There is a presumption that the parent who is not a managing conservator should be appointed possessory conservator. However that presumption does not apply if the court finds such appointment is not in the child‘s best interest and would endanger the child‘s physical or emotional welfare. In determining what level of access to a child a possessory conservator should have, the SAPCR court shall consider:
The SAPCR court shall, based on credible proof of a history or pattern of past or present child neglect or sexual or physical abuse of a spouse, a parent, or a child, take as a rebuttable presumption that it is not in the child‘s best interest:
Unless the court finds it is not in a child‘s best interest AND would endanger the physical or emotional welfare of the child, the court shall appoint as possessory conservator a parent who is not the sole or joint managing conservator. But if the child‘s welfare would be endangered, the court may deny possession of or restrict access to the child by the non-managing conservator parent.
7.4.4.1 Access premised on findings.
If the SAPCR court has found that the possessory conservator has a history or pattern of committing family violence, it may not grant access to the child without first finding that the access:
It is a rebuttable presumption that when there is credible evidence of child neglect or abuse of the other parent, a child or a spouse by a parent, that parent should not have unsupervised visitation with a child.
7.4.4.3 Credible evidence.
The court must consider whether there was a protective order issued against a parent in determining whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by the parent directed at the other parent, a spouse or a child. (Tex. Fam. Code § 153.004(e) and (f)).
7.4.5 Conditions for access.
When the SAPCR court has found, based on a preponderance of the evidence, that a parent has engaged in family violence in the two years prior to or during the pendency of the suit, the court may condition access to the child upon:
A person‘s conservatorship of a child (sole, joint, or managing) is subject to change if that person is convicted of or receives deferred adjudication probation for an offense involving family violence. (Tex. Fam. Code § 156.l045(a))
7.4.7 False claims and SAPCR modifications.
It is a Class B misdemeanor to falsely claim in a motion to modify that the conservator has a criminal conviction or is on probation for an offense involving family violence. (Tex. Fam. Code § 156.1045(b))
7.5 Electronic communications with child.
The SAPCR court may, with the parties‘ agreement, permit a child to communicate electronically with a parent who has committed family violence. The order permitting such communication must be in writing and contain:
A protective order in a divorce or SAPCR proceeding becomes appealable when the final order dissolving the marriage or determining support, possession, and access to the child becomes final and appealable.(Tex. Fam. Code §§ 81.009; Tex. Fam. Code § 109.002)
7.9 Overview of the law.
Parties may file for a protective order as part of a divorce or SAPCR. If during the course of a divorce lawsuit, the court has reason to believe a party is a victim of family violence, the court has an affirmative duty to inform the party of the right to seek a protective order. Each party has the duty to inform the divorce court if the parties have a pending application for or an existing protective order between them. (Tex. Fam. Code § 6.404; Tex. Fam. Code § 6.405)
TRO.
A divorce temporary restraining order can enjoin many of the same acts prohibited by a Title 4 temporary protective order, but the divorce TRO cannot exclude a spouse from a residence. (Tex. Fam. Code§ 6.501(b)(2)(A)).
Divorce court.
A divorce court may issue a protective order upon the request of a party. (Tex. Fam. Code§ 6.504). A divorce protective order must be issued in a separate document from the divorce decree. (Tex. Fam. Code § 85.003)Upon motion of a party or the court, a Title 4 protective order case may be transferred to the court where the parties‘ divorce case is pending if the court finds the transfer is either in the interests of justice or for the safety or convenience of a party or witness. (Tex. Fam. Code § 85.064). Only a respondent-movant may be assessed a fee for the transfer. (Tex. Fam. Code § 85.065)
Spousal maintenance.
If a party has been convicted of, or has served a deferred adjudication probation for,an offense involving family violence that occurred within two years of the filing of the divorce suit, the divorce court may order that party to pay spousal maintenance to a party-victim. The order can last up to three years or until an impediment to gainful employment is removed.The maximum amount that can be awarded is $5000per month or 20% of the payor‘s monthly income. (Tex. Fam. Code §§ 8.051-8.055)SAPCR court.A SAPCR court must consider evidence of family violence in making conservatorship awards. (Tex. Fam. Code § 153.004)
Sole or joint managing conservatorship.
In determining whether a party should be appointed sole or joint managing conservator, the court must consider whether in the two years preceding the SAPCR filing, the party intentionally used physical force against a spouse, parent of the child, or anyone under 18 years of age
OR
whether the party has a history or pattern of past or present child neglect or physical or sexual abuse of a spouse, parent, or child. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.131)
Possessory conservatorship.
The presumption that a party who is not a sole or managing conservator should have possessory conservatorship rights may be overcome if the court finds that such an award is not in the child‘s best interest,in which case access to the child by the possessory conservator may be restricted.
Determining level of access.
In determining the level of access to a child that a possessory conservator should have, the court must consider whether the possessory conservator has engaged in family violence and whether that person has, in the two years preceding the SAPCR filing, a history or pattern of engaging in family violence. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.191)In determining whether there is a history or pattern of family violence, the court should NOT consider: who initiated any arguments that led to assaults; whether the assaults were provoked, or other factors contributing to assaults by the parties.In making this determination, the court must consider credible evidence that the party has been restrained by a protective order. (Tex. Fam. Code § 153.004)Once the court has credible evidence that a party has neglected or abused a child, there is a rebuttable presumption that the party should have only supervised visitation with the child.(Tex. Fam. Code § 153.004)
Limitations on access to child.
Before granting access by a possessory conservator after a determination it is in the child‘s best interest to limit the access, the court must find that the possessory conservator‘s access to the child will not endanger the child or another person. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.191)The court may condition access to the child upon: supervised visitation, exchange of possession occurring in a designated setting and manner (including limitations on electronic communications); the parent‘s abstention from consuming alcohol or controlled substances in the 12 hours preceding and during the period of access; or the abusive parent‘s completion of a battering intervention and prevention course (as provided in Tex. Code Crim. Proc. art. 42.141or Tex. Fam. Code § 153.010).(Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.015(e)) A conviction for a family violence offense is a change of circumstance that can be the basis for modifying a SAPCR order. (Tex. Fam. Code § 156.1045)
10.2 Family violence defined.
For offenses against the person, family violence means:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Tex. Fam. Code § 261.001(C), (E) and (G), by a member of a family or household toward a child of the family or household;
OR
(3) dating violence, which is an act by an individualthat is: against another individual with whom that person has or has had a dating relationship;
AND
intended to result in physical harm, bodily injury, assault, or sexual assault;
OR
a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.(Tex. Code Crim. Proc. art. 42.103; Tex. Fam. Code § 71.004; Tex. Fam. Code § 72.0021)
10.4 Collateral consequences.
A finding of family violence against a party(in the pending orin a prior lawsuit, whether civil or criminal), has multiple possible collateral consequences. In the family law context (divorce or suits affecting the parent-child relationship), such a finding adversely impacts thatparty‘s claimto be granted:
A party in a divorce suit who is found to have committed family violence against a spouse may also be required to pay spousal maintenance.
A finding of family violence in a protective order or in a criminal judgment against a defendant may also adversely affect the defendant‘s right to:
10.4.1.2 Joint managing conservatorship.
A finding of family violence:
10.4.1.5 Possessory conservatorship.
If there is a finding of family violence, the presumption that the non-managing conservator party should be appointed possessory conservator (set out in Tex. Fam. Code § 153.191)does not apply unless the court finds that access to the child by that party:
10.4.2 Possession of firearms.
If a party is found to have committed family violence in a civil protective order case or in a criminal judgment, the party is prohibited from possessing a firearm and is ineligible for a concealed handgun license:
Clark v. Funk, No. 08-97-00634-CV, 2000 Tex. App. Lexis 8730, 2000 WL 1203942 (Tex. App.—El Paso, Aug. 24, 2000, no pet.).
In awarding husband joint managing conservatorship status, the trial court did not abuse its discretion because as the trier-of-fact the trial court was free to find the wife‘s claim of physical abuse by husband lacked credibility and so court was not bound to deny husband joint managing conservatorship status under Tex. Fam. Code 153.004(b).
Coleman v. Coleman, 109 S.W.3d 108(Tex. App.--Austin 2003, no pet.)
In a divorce case, the trial court did not err in appointing husband joint managing conservator of children despite the wife‘s allegations of history or pattern of sexual abuse when evidence failed to establish that husband was barred from being joint managing conservator under Tex. Fam. Code § 153.004(b).
Danklefs v. Danklefs, No. 04-01-0849-CV, 2003 Tex. App. Lexis 6718 * 5-6(Tex. App.--San Antonio,Aug. 6, 2003, pet. denied).
While the trial court is given wide latitude in determining custody issues, the Texas Family Code places certain restrictions on the trial court's discretion when there are allegations of abuse. Tex. Fam. Code § 153.004provides that the trial court is to consider evidence of the intentional use of abusive physical force by a party against the party's spouse, and further provides that the trial court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present physical abuse by one parent directed against the other parent. Tex. Fam. Code § 153.004(b). The term "history or pattern" is not defined in the Texas Family Code; therefore, the court gave the term its ordinary meaning. Tex. Gov‘t Code § 311.011.Nothing in the record undisputedly shows a history or pattern of violence. Excluding the interested parties' testimony, no evidence was presented that credibly indicated even one instance of physical abuse, much less a history or pattern. The trial court could have determined that the wife‘stestimony regarding the history of physical abuse was not credible. Therefore, the trial court was not required to exclude the husbandfrom joint managing conservatorship under section 153.004.
In re Marriage of Stein, 153 S.W.3d 485(Tex. App.--Amarillo 2004, no pet.).
In a SAPCR where evidence of physical abuse by the father was uncontested, the trial court erred in appointing the father joint managing conservator in violation of Tex. Fam. Code § 153.004(b).
In re RTH, 175 S.W.3d 519(Tex. App.--Fort Worth 2005, no pet.).
In a proceeding to modify conservatorship, family violence by the joint managing conservator-mother was not enough to justify changingprimary residence to that of the joint managing conservator father.
Stucki v. Stucki, 222 S.W.3d 116(Tex. App.--Tyler 2006, no pet.).
In a divorce case, the evidence did not establish a history or pattern of family violence that would rebut the presumption that the parents should be joint managing conservators, and mother failed to rebut presumption in Tex. Fam. Code § 8.053(a), so she was not entitled to an award of spousal maintenance.
a.Parent Should Be Appointed as Managing Conservator
Unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. A finding of a history offamily violence involving the parents of a child removes the presumption. Tex. Fam. Code§ 153.131(b).
b.Parent With History of Domestic Violence of Sexual Abuse
In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code§ 153.004(a).
Effective September 1, 2017, Tex. Fam. Code § 153.004(e) states that it is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present neglect, abuse or family violence by that parent, or any person who resides in that parent’s household or who is permitted by that parent to have unsupervised access to the child during that parent’s periods of possession of or access to the child. Tex. Fam. Code § 153.004(e).The statute further provides that courts may consider evidence of a history or pattern of past or present child neglect, abuse or family violence by a parent or other person, as applicable. Tex. Fam. Code § 153.004(f).
c.Parent Should Be Appointed as Possessory Conservator
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the child. Tex. Fam. Code§ 153.191.The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator. Tex. Fam. Code§ 153.004(c).The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
- There is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit;
- The parent engaged in conduct that constitutes an offense under Tex. Penal Code§ 21.02, Tex. Penal Code§ 22.011, Tex. Penal Code§ 22.021, or Tex. Penal Code§ 25.02, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child. Tex. Fam. Code§ 153.004(d)(2).
- Appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development;
- It would not be in the child’s best interest to appoint a relative of the child oranother person as the managing conservator. Tex. Fam. Code§ 263.404(a).
THE TEXAS FAMILY VIOLENCE BENCHBOOK
The purpose of this Benchbook; to set out the Texas and federal laws on family violence and to consider them with the impartial and unbiased view expected of a judge. The readers of this Benchbook are encouraged to use the material herein to begin or continue a critical analysis of how the legal system can best address the problem of family violence.
7.4 SAPCR conservatorship awards
7.4.1 Sole or joint managing conservator.
Absent a finding that it would not be in the child‘s best interest, there is a presumption that both parents should be appointed as joint managing conservators of a child. In determining whether a party should be appointed as the sole or as a joint managing conservator, the SAPCR court shall consider:
- whether the party has, in the two years prior to or during the pendency of the suit, intentionally used abusive physical force against a spouse, a parent of the child, or any person under the age of 18;
- whether the party has a history or pattern of past or present child neglect or physical or sexual abuse of a spouse, parent, or child. (Tex. Fam. Code § 153.004(a) and (b); Tex. Fam. Code § 153.131)
There is a presumption that the parent who is not a managing conservator should be appointed possessory conservator. However that presumption does not apply if the court finds such appointment is not in the child‘s best interest and would endanger the child‘s physical or emotional welfare. In determining what level of access to a child a possessory conservator should have, the SAPCR court shall consider:
- whether the party engaged in family violence;
- whether the party has a history or pattern of engaging in family violence in the two years prior to or during the pendency of the suit.
- NOTE: Under Tex. Fam. Code § 153.004(c), when determining what access a possessory conservator should have to a child, the court must consider all evidence of family violence, not just the instances occurring within the two years prior to the filing of the suit or while the suit is pending.(Tex. Fam. Code §§ 153.004(c) and (d); Tex. Fam. Code § 153.191)
The SAPCR court shall, based on credible proof of a history or pattern of past or present child neglect or sexual or physical abuse of a spouse, a parent, or a child, take as a rebuttable presumption that it is not in the child‘s best interest:
- to appoint the abusive parent as sole or managing conservator;
- to appoint the abusive parent as the conservator with the right to determine the child‘s primary residence;
- for the abusive parent to have unsupervised visitation with the child. (Tex. Fam. Code § 153.004(b) and (e))
Unless the court finds it is not in a child‘s best interest AND would endanger the physical or emotional welfare of the child, the court shall appoint as possessory conservator a parent who is not the sole or joint managing conservator. But if the child‘s welfare would be endangered, the court may deny possession of or restrict access to the child by the non-managing conservator parent.
7.4.4.1 Access premised on findings.
If the SAPCR court has found that the possessory conservator has a history or pattern of committing family violence, it may not grant access to the child without first finding that the access:
- will not endanger the child;
- can occur without endangering any other victim of the family violence. (Tex. Fam. Code § 153.004(d); Tex. Fam. Code § 153.191)
It is a rebuttable presumption that when there is credible evidence of child neglect or abuse of the other parent, a child or a spouse by a parent, that parent should not have unsupervised visitation with a child.
7.4.4.3 Credible evidence.
The court must consider whether there was a protective order issued against a parent in determining whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by the parent directed at the other parent, a spouse or a child. (Tex. Fam. Code § 153.004(e) and (f)).
7.4.5 Conditions for access.
When the SAPCR court has found, based on a preponderance of the evidence, that a parent has engaged in family violence in the two years prior to or during the pendency of the suit, the court may condition access to the child upon:
- supervised visitation;
- exchange of possession occurring in a designated setting and manner;
- the parent‘s abstention from consuming alcohol or controlled substances in the 12 hours proceeding and during the period of access
- the abusive parent‘s completion of a battering intervention and prevention course (as provided in Tex. Code Crim. Proc. art. 42.141or Tex. Fam. Code § 153.010).(Tex. Fam. Code § 153.004(d))
A person‘s conservatorship of a child (sole, joint, or managing) is subject to change if that person is convicted of or receives deferred adjudication probation for an offense involving family violence. (Tex. Fam. Code § 156.l045(a))
7.4.7 False claims and SAPCR modifications.
It is a Class B misdemeanor to falsely claim in a motion to modify that the conservator has a criminal conviction or is on probation for an offense involving family violence. (Tex. Fam. Code § 156.1045(b))
7.5 Electronic communications with child.
The SAPCR court may, with the parties‘ agreement, permit a child to communicate electronically with a parent who has committed family violence. The order permitting such communication must be in writing and contain:
- the terms of the communication printed in bold-faced capital letters;
- any specific restrictions relating to family violence or supervised visitation legally required to be in a possession or access order.(Tex. Fam. Code § 153.015(e))
A protective order in a divorce or SAPCR proceeding becomes appealable when the final order dissolving the marriage or determining support, possession, and access to the child becomes final and appealable.(Tex. Fam. Code §§ 81.009; Tex. Fam. Code § 109.002)
7.9 Overview of the law.
Parties may file for a protective order as part of a divorce or SAPCR. If during the course of a divorce lawsuit, the court has reason to believe a party is a victim of family violence, the court has an affirmative duty to inform the party of the right to seek a protective order. Each party has the duty to inform the divorce court if the parties have a pending application for or an existing protective order between them. (Tex. Fam. Code § 6.404; Tex. Fam. Code § 6.405)
TRO.
A divorce temporary restraining order can enjoin many of the same acts prohibited by a Title 4 temporary protective order, but the divorce TRO cannot exclude a spouse from a residence. (Tex. Fam. Code§ 6.501(b)(2)(A)).
Divorce court.
A divorce court may issue a protective order upon the request of a party. (Tex. Fam. Code§ 6.504). A divorce protective order must be issued in a separate document from the divorce decree. (Tex. Fam. Code § 85.003)Upon motion of a party or the court, a Title 4 protective order case may be transferred to the court where the parties‘ divorce case is pending if the court finds the transfer is either in the interests of justice or for the safety or convenience of a party or witness. (Tex. Fam. Code § 85.064). Only a respondent-movant may be assessed a fee for the transfer. (Tex. Fam. Code § 85.065)
Spousal maintenance.
If a party has been convicted of, or has served a deferred adjudication probation for,an offense involving family violence that occurred within two years of the filing of the divorce suit, the divorce court may order that party to pay spousal maintenance to a party-victim. The order can last up to three years or until an impediment to gainful employment is removed.The maximum amount that can be awarded is $5000per month or 20% of the payor‘s monthly income. (Tex. Fam. Code §§ 8.051-8.055)SAPCR court.A SAPCR court must consider evidence of family violence in making conservatorship awards. (Tex. Fam. Code § 153.004)
Sole or joint managing conservatorship.
In determining whether a party should be appointed sole or joint managing conservator, the court must consider whether in the two years preceding the SAPCR filing, the party intentionally used physical force against a spouse, parent of the child, or anyone under 18 years of age
OR
whether the party has a history or pattern of past or present child neglect or physical or sexual abuse of a spouse, parent, or child. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.131)
Possessory conservatorship.
The presumption that a party who is not a sole or managing conservator should have possessory conservatorship rights may be overcome if the court finds that such an award is not in the child‘s best interest,in which case access to the child by the possessory conservator may be restricted.
Determining level of access.
In determining the level of access to a child that a possessory conservator should have, the court must consider whether the possessory conservator has engaged in family violence and whether that person has, in the two years preceding the SAPCR filing, a history or pattern of engaging in family violence. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.191)In determining whether there is a history or pattern of family violence, the court should NOT consider: who initiated any arguments that led to assaults; whether the assaults were provoked, or other factors contributing to assaults by the parties.In making this determination, the court must consider credible evidence that the party has been restrained by a protective order. (Tex. Fam. Code § 153.004)Once the court has credible evidence that a party has neglected or abused a child, there is a rebuttable presumption that the party should have only supervised visitation with the child.(Tex. Fam. Code § 153.004)
Limitations on access to child.
Before granting access by a possessory conservator after a determination it is in the child‘s best interest to limit the access, the court must find that the possessory conservator‘s access to the child will not endanger the child or another person. (Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.191)The court may condition access to the child upon: supervised visitation, exchange of possession occurring in a designated setting and manner (including limitations on electronic communications); the parent‘s abstention from consuming alcohol or controlled substances in the 12 hours preceding and during the period of access; or the abusive parent‘s completion of a battering intervention and prevention course (as provided in Tex. Code Crim. Proc. art. 42.141or Tex. Fam. Code § 153.010).(Tex. Fam. Code § 153.004; Tex. Fam. Code § 153.015(e)) A conviction for a family violence offense is a change of circumstance that can be the basis for modifying a SAPCR order. (Tex. Fam. Code § 156.1045)
10.2 Family violence defined.
For offenses against the person, family violence means:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Tex. Fam. Code § 261.001(C), (E) and (G), by a member of a family or household toward a child of the family or household;
OR
(3) dating violence, which is an act by an individualthat is: against another individual with whom that person has or has had a dating relationship;
AND
intended to result in physical harm, bodily injury, assault, or sexual assault;
OR
a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.(Tex. Code Crim. Proc. art. 42.103; Tex. Fam. Code § 71.004; Tex. Fam. Code § 72.0021)
10.4 Collateral consequences.
A finding of family violence against a party(in the pending orin a prior lawsuit, whether civil or criminal), has multiple possible collateral consequences. In the family law context (divorce or suits affecting the parent-child relationship), such a finding adversely impacts thatparty‘s claimto be granted:
- joint managing conservatorship;
- sole or managing conservatorship;
- possessory conservatorship;unsupervised access to achild;
- unrestricted electronic communications with a child;
- on-going custody of or access to a child in the face of a request to modify an order to change custody of or restrict access to a child.
A party in a divorce suit who is found to have committed family violence against a spouse may also be required to pay spousal maintenance.
A finding of family violence in a protective order or in a criminal judgment against a defendant may also adversely affect the defendant‘s right to:
- hold a concealed weapon permit;
- obtain or keep an occupational license issuedby the state (e.g., teaching, plumbing, nursing, etc.);
- obtain bail;
- obtain permanent residency or citizenship.
10.4.1.2 Joint managing conservatorship.
A finding of family violence:
- destroys the presumption (set out in Tex. Fam. Code § 153.131)that the parents should be joint managingconservators of the child,
- precludes the appointment of the abusive party as a joint managing conservator of the child. (Tex. Fam. Code § 153.004(b))
10.4.1.5 Possessory conservatorship.
If there is a finding of family violence, the presumption that the non-managing conservator party should be appointed possessory conservator (set out in Tex. Fam. Code § 153.191)does not apply unless the court finds that access to the child by that party:
- will not endanger the child;
- can occur without endangering the child orany other victim of the family violence. (Tex. Fam. Code § 153.004(d))
10.4.2 Possession of firearms.
If a party is found to have committed family violence in a civil protective order case or in a criminal judgment, the party is prohibited from possessing a firearm and is ineligible for a concealed handgun license:
- if the finding is in a protective order issued after a due process hearing, for the duration of the protective order (i.e., up to two years);
- if the finding is in a criminal judgment (misdemeanor or felony), the prohibition lasts until the conviction is expunged or set aside, or the defendant is pardoned with his civil liberties restored by the jurisdiction where he was convicted.
- NOTE: The court must admonish adefendant convicted of a family violence offense or who is the subject of a protective order proceeding that the entry of the conviction for the family violence offense or the entry of the protective order against him triggersa federal prosecution against him or her under 18 U.S.C. § 922or under Tex. Penal Code § 46.064if that individual is found to be inpossession of a firearm at a subsequent time. (18 U.S.C. §§ 921(a)(20) and922(g); Tex. Penal Code § 46.04; Tex. Gov‘t Code §§ 411.171)
Clark v. Funk, No. 08-97-00634-CV, 2000 Tex. App. Lexis 8730, 2000 WL 1203942 (Tex. App.—El Paso, Aug. 24, 2000, no pet.).
In awarding husband joint managing conservatorship status, the trial court did not abuse its discretion because as the trier-of-fact the trial court was free to find the wife‘s claim of physical abuse by husband lacked credibility and so court was not bound to deny husband joint managing conservatorship status under Tex. Fam. Code 153.004(b).
Coleman v. Coleman, 109 S.W.3d 108(Tex. App.--Austin 2003, no pet.)
In a divorce case, the trial court did not err in appointing husband joint managing conservator of children despite the wife‘s allegations of history or pattern of sexual abuse when evidence failed to establish that husband was barred from being joint managing conservator under Tex. Fam. Code § 153.004(b).
Danklefs v. Danklefs, No. 04-01-0849-CV, 2003 Tex. App. Lexis 6718 * 5-6(Tex. App.--San Antonio,Aug. 6, 2003, pet. denied).
While the trial court is given wide latitude in determining custody issues, the Texas Family Code places certain restrictions on the trial court's discretion when there are allegations of abuse. Tex. Fam. Code § 153.004provides that the trial court is to consider evidence of the intentional use of abusive physical force by a party against the party's spouse, and further provides that the trial court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present physical abuse by one parent directed against the other parent. Tex. Fam. Code § 153.004(b). The term "history or pattern" is not defined in the Texas Family Code; therefore, the court gave the term its ordinary meaning. Tex. Gov‘t Code § 311.011.Nothing in the record undisputedly shows a history or pattern of violence. Excluding the interested parties' testimony, no evidence was presented that credibly indicated even one instance of physical abuse, much less a history or pattern. The trial court could have determined that the wife‘stestimony regarding the history of physical abuse was not credible. Therefore, the trial court was not required to exclude the husbandfrom joint managing conservatorship under section 153.004.
In re Marriage of Stein, 153 S.W.3d 485(Tex. App.--Amarillo 2004, no pet.).
In a SAPCR where evidence of physical abuse by the father was uncontested, the trial court erred in appointing the father joint managing conservator in violation of Tex. Fam. Code § 153.004(b).
In re RTH, 175 S.W.3d 519(Tex. App.--Fort Worth 2005, no pet.).
In a proceeding to modify conservatorship, family violence by the joint managing conservator-mother was not enough to justify changingprimary residence to that of the joint managing conservator father.
Stucki v. Stucki, 222 S.W.3d 116(Tex. App.--Tyler 2006, no pet.).
In a divorce case, the evidence did not establish a history or pattern of family violence that would rebut the presumption that the parents should be joint managing conservators, and mother failed to rebut presumption in Tex. Fam. Code § 8.053(a), so she was not entitled to an award of spousal maintenance.
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