Of all the potential concerns that a parent can have probably the most significant is related to the possibility that your children may be removed from your home as a result of a Child Protective Services (CPS) investigation. CPS investigates potential cases of abuse and neglect of children in Texas. If the agency receives an anonymous complaint of potential abuse or neglect then an investigator or caseworker (or both) will contact you by phone or in-person to begin an investigation.
That investigation will involve interviews. You, your spouse, any adult living in your household, your child (depending upon their age), and other family members will likely be interviewed. The CPS caseworker will attempt to collect information that relates to the report made to CPS about your child. Any information that can either substantiate on cast doubt on the report will be included in their final analysis of whether to pursue a case. That case may result in the removal of your child from your home. This typically occurs when it is determined that your child cannot be kept safe in your home.
There may be an unsafe condition in your homes like a broken floorboard, exposed wiring, or even a firearm that is not secured or kept in a safe. There may be an adult living in the home who sells drugs in the home, leaves prescription medicine bottles unattended on the countertops, or otherwise is harming your child. Or, you may have left your child home alone without an adult caregiver. Finally, your child may be getting abused by you, your spouse, or another adult in your home. If CPS believes that your child is being abused or neglected then it will hesitate to remove your child. In extreme circumstances, CPS may even decide to remove your child from the home before a hearing can be held.
The list of reasons why your child may be removed from your home is long. However, that doesn’t mean that it is likely that your child will ever become involved in a CPS case. The risk to your child has to be significant for CPS to ever knock on your door. Being an unfit parent is something that parents think about from time to time but will likely never come face to face with. Being a fit parent means caring for your child, doing your best to reduce the risk of harm to him or her, and providing him or her with the basics of life as far as food, shelter, clothing, and education. The rest is just details.
However, if you have come face to face with CPS before, or if you are dealing with a CPS case right now, you need to know what circumstances that are out there could lead to the removal of your child from your home. What I would like to discuss with you today are the factors that a family court judge or a juvenile court judge in Texas may utilize to determine whether you are a fit parent, or not. That determination will go a long way towards finding whether your child can remain in your home or be removed- perhaps permanently.
How do you define an unfit parent?
When a parent is unable to care for their child due to misconduct or a failure to support their child in a significant way- that is how I would begin to define being an unfit parent. Abuse and neglect play a central role in being able to determine whether or not a parent is fit at least in the realm of a CPS case. When CPS enters your life it does so as a result of an allegation of abuse or neglect having been issued against you by someone. These reports of abuse or neglect are made anonymously. This means that you will likely never learn who made the report in the first place.
Whether your child is removed from your home or not, CPS if it decides to pursue a case against you will likely require that you complete some form of family-based social services or a safety plan. You will play a role in creating this safety plan with your family and the agency. This safety plan is intended to help you prepare your home and yourself to be as diligent and proactive as possible when it comes to raising your child in a safe environment.
We also see accusations of unfit parenting come during divorce and child custody cases. It is a significant accusation to tell Child Protective Services or a family court judge that you believe your Co-parent to be unfit. In the most extreme and stressful of family law cases, we could anticipate some degree of harmful and difficult back and forth. However, hopefully, your situation will not involve accusations of abuse or neglect of a child. That is up to the nature of your relationship with your spouse as well as your history together as husband and wife.
Disagree on custody or possession with your spouse? Expect this to happen
If you and your spouse disagree on how custody should be laid out in your case a series of events will likely fall into place that will help the judge determine how to divide custody between the two of you. First, an amicus attorney will likely be appointed. The job of the amicus attorney is to act as the eyes and ears of the court- as a friend to the court. Since the judge cannot follow you and your spouse (and your child) home, the amicus will do much of that work for him or her.
The amicus will likely interview and talk with your child (depending upon their age) regularly. These conversations will help the amicus learn his or her feelings towards the custody question and learn which parent your child prefers to live with on a primary basis. The opinion of your child is the only factor that a judge will consider (despite assertions to the contrary that I hear with regularity). However, the opinion of your child on this will impact the judge’s final determination to one degree or another. Interviews of you, your spouse, and other adults in the life of your child will also take place. All of this will be done for the amicus to learn more about the totality of the circumstances and to be able to make a well-informed recommendation to the judge in your case.
Expect an inspection of your home and that of your spouse to occur towards the end of a divorce. Does your child have a bedroom? Own bed? Own toys? How comfortable does your child appear in the home and what is the home environment like? Is it conducive to raising your child not only on an occasional basis but on a day-to-day basis? This home inspection will matter a great deal to the judge and will be submitted along with all the other evidence of your case in a trial (if your case makes it that far). Ultimately it is the best interests of your child that matter the most to a judge.
Fitness characteristic for being a primary custodian of your child
Are you capable of setting age-appropriate limits on the behavior of your child? This is a tricky factor to consider since you and your spouse may disagree on what is appropriate for your child. You may believe that your child is capable of watching certain television shows while your spouse disagrees. What about attending sleepovers at friends’ homes? What about dating? These are the sort of boundaries that will be considered when determining which parent is better suited to care for your child on a day-to-day basis.
In a perfect world, you and your co-parent would be able to trust one another on this subject. The key part of parenting after a divorce is being able to lean on your co-parent for support in taking the challenges of parenting head-on. When you don’t have a strong relationship with your co-parent that gives you some room to begin healing that broken bond. While the divorce may mark the end of your marriage it is the beginning of your co-parenting relationship. Many people in your shoes either forget this or purposefully block it out.
What does your child need in terms of day-to-day care? Different children require different things from their parents. If your child has a special need in terms of their physical health, mental well-being, or education then you need to be able to show a judge that you are tuned in to these needs and capable of caring for your child regularly. I think this is especially important if you have not acted in that capacity as a parent thus far in your child’s life. Listening to your child and communicating with him or her in a way that he or she understands is a key part of this discussion, as well.
Speaking of being involved in the life of your child, a judge will consider what role you have played in the life of your child to this point. Have you been the parent who has taken your child to doctor’s appointments, sports games, or other events? Have you taken the lead on getting your child to bed and feeding him or her meals? Homework duties? These are just a few of the daily responsibilities that the primary conservator of children must face. If you have done all these things before the divorce then you will be well-positioned to argue why you should continue on this role after the divorce.
It is difficult to step into the role of caregiver on a primary basis when you have never done so before. Being responsible for the well-being of your child when your co-parent is with you is a lot different than caring for your child when your co-parent is miles away. A history of being capable of meeting the needs of your child is what matters most in this regard.
A judge will also want to see how you resolve conflicts in custody matters with your co-parent. Inevitably, conflicts will arise in your parenting life. You and your co-parent will not agree on everything associated with raising your child. That means the two of you need to be able to work together to resolve these issues as a team rather than to let these disagreements fester and become something much worse. Not everyone has the skills or the tools in their toolbox to do this naturally. Some folks may need to work out their problems in therapy or counseling. Co-parenting workshops and guides are oftentimes a part of completing a divorce case in many Texas counties.
The two c’s of parenting come into play a great deal after a divorce is over with compromise and communication. It is unrealistic to expect that you will always get your way when it comes to parenting. Your idea on how to attack a particular issue may be the polar opposite of what your spouse believes. However, the reality of the situation is that you almost always have some middle ground to approach the subject. Whether you can arrive at that middle ground without tearing each other to shreds first is the question that you need to be asking yourself.
Next, your personal history of caring for your child will be examined. This is especially true regarding any history of abuse, neglect, or CPS involvement. Prior history of CPS involvement may mean that custody needs to be changed. Sometimes this indicates that supervised or limited visitation with your child is appropriate for a parent who has had CPS involved in their lives previously. The CPS case may have gone nowhere, but simply having a history of CPS involvement in your life can be a major red flag when it comes to determining primary custody.
It is never acceptable to hit or strike your child or your co-parent. If CPS has intervened in a situation where your child has not been harmed but that he or she has witnessed domestic violence in the home this can be a factor when determining primary custody, as well. Again, reduced or restricted custody may be the result of an extensive history of domestic or family violence.
An unfortunate component of many CPS cases is child abuse. Whether you or your co-parent have an issue with substances can become a major reason why you cannot be named as the primary conservator of your child. This can include your utilizing a drug, your partner doing the same, or even having people in the home who act in this way. It would make a great deal of sense to remove any person from your home who presents a danger to your child or a threat to your being able to retain custody rights of your child after a divorce or child custody case.
If you suffer from a mental health issue that can be a factor that a judge utilizes when determining primary custody. Having a diagnosed mental illness is not in and of itself proof positive that you cannot parent your child primarily. However, having a diagnosed mental health problem that you are not treating or are neglecting treatment is a good reason for a judge to not allow you to act as the primary conservator of your child.
You are not only a danger to yourself if you are not receiving treatment for your mental health problem, but a danger to your child. It is for the best that you receive specialized care for your mental illness. This can be in the form of formalized medical care, counseling, therapy, or regular visits to narcotics or alcoholics anonymous if your mental illness is tied to an addiction of some sort.
Do you have a propensity to not engage socially in the community? This isn’t the most important factor for a judge to consider but it is a positive sign if you can engage with your community in social activities. Church, civic organizations, youth sports, scouting, and other activities are all seen as positive outlets for growth in the life of your child. Your ability to foster a love of your community and a sense of civic involvement can be seen as an extremely positive factor for growth in your child’s life.
Finally, the wishes of your child will impact the judge’s determination on primary custody. What is your relationship with your child like? Have you displayed a history of taking part in the activities of your child? Does your child know that he or she can go to you with their problems? Consider these issues before throwing your hat in the ring of consideration for primary conservatorship responsibilities.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.