Can Domestic Violence Affect Child Custody in Texas?

Texas is a no-fault divorce state. That means you can file for a divorce without assigning blame to one spouse. The marriage is just broken. However, when it comes to incidents of domestic violence, the courts will consider that especially as it relates to deciding matters of child custody.

If you have made the decision to divorce your spouse and there is a history of domestic violence, you need to speak with an experienced Austin child custody attorney. You’ll be able to get your questions answered on how you should approach the child custody agreement.

How Texas Defines Family Violence

Terminology matters in a courtroom. Texas statutes say “family violence” rather than “domestic violence.” Here is the core definition under the Texas Family Code:

“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.”

The definition also reaches dating violence and certain kinds of abuse committed against a child of the family or household.

An incident doesn’t have to be physical. If you feel intimidated or threatened and you fear for your safety or the safety of your kids, the issue of domestic violence can be raised. 

Types of Protective Orders

It might be that the incident of domestic violence is the reason you’re seeking a divorce. However, there might also be a situation where you file for divorce, and that triggers the violence or threats. In either situation, you and your attorney can petition the court for a protective order. You can ask for the following:

Temporary Ex Parte Orders

These are protective orders put in place on an emergency basis without notifying the other spouse. They can limit all contact between you and your ex and restrict them from visiting your home or workplace. It also restricts contact through phone calls, text messages, and social media. A temporary order will last up to 20 days and takes effect immediately.

Final Protective Order

Before the temporary order runs out, the court holds a hearing where both sides present evidence. If the judge finds that family violence occurred and is likely to occur again, a final order can last up to two years. It can run longer where the court finds that the respondent committed a felony involving family violence, caused serious bodily injury, or has been subject to two or more previous protective orders.

Does a protective order mean the other parent will never see the children again? Usually not. But it changes the terms considerably.

How Family Violence Affects Conservatorship

When resolving child custody (also referred to as conservatorship) issues, Texas family court judges will always default to the children’s best interests. With a protective order in place, there are restrictions placed on the abuser that limit how they can contact and interact with their children. This is what that looks like: 

No joint managing conservatorship. Under Texas Family Code § 153.004, when there is credible evidence of a history or pattern of family violence, it prevents a court from naming both parents as joint managing conservators. This can apply before the divorce is finalized or as a modification after the divorce if an emerging threat exists.

A presumption against the abusive parent. That same section creates a rebuttable presumption that it is not in the child’s best interest for a parent with that history to be named sole managing conservator or to be the parent who decides where the child lives.

Restricted possession and access: Where a “preponderance of the evidence” shows a history or pattern of family violence in the two years before the case was filed, or while it is pending, the court may not grant that parent access at all. A judge can still allow access after finding it would not endanger the child and would serve the child’s best interest, but only under an order built to keep the child safe. That order can require supervised visits, exchanges in a protective setting, no alcohol or drugs before and during visits, and completion of a battering intervention and prevention program.

A presumption against unsupervised time. Where credible evidence shows a history or pattern of neglect, abuse, or family violence, Texas presumes unsupervised visitation is not in the child’s best interest. That presumption also applies when the risk comes from someone living in that parent’s household rather than from the parent.

A criminal conviction is not required for any of this. What the court needs is credible evidence, which can include witness testimony, photographs, messages, medical records, and prior protective orders. An accusation on its own is not enough. 

Impact of False Allegations on Texas Custody Cases

An accusation of domestic violence is taken very seriously by the courts. It stands to reason then, that they take fabricated reports seriously too.

If you make an accusation, you assume the burden of proof. In other words, you’ll need evidence to back up your claim. Your spouse will also have an opportunity to respond and put on evidence of their own.

Texas addresses false reporting directly. When the court discovers that a parent has fabricated abuse or violence, that will damage the accuser’s credibility; a false accusation carries a civil penalty of up to $500 and could result in reduced custody rights. 

How to Protect Your Children During a Divorce

If you are in an unsafe situation, safety comes before paperwork. That can mean staying with family or at a shelter while you sort out next steps. Move quickly on a protective order, because the two-year lookback in the conservatorship statute makes timing matter. Save what you already have, including messages, photographs, medical records, and police reports, and keep a dated account of what happened.

All of it is a great deal to manage at once, which is where Davis & Associates can help.

Our attorneys have guided many Texas families through divorces complicated by violence in the home. We know how the family courts handle these cases, what it takes to obtain a protective order, and what evidence a judge needs before restricting another parent’s time.

If violence is part of your family’s story, reach out to our office to talk through where you stand and what you can ask the court to do. The sooner you understand your options, the more of them you will still have.