Texas family law includes a rebuttable presumption that appointing both parents as joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. The presumption can be rebutted upon a finding of a history of family violence.  A mother recently challenged a trial court’s order, arguing in part that the court failed to properly apply the presumption.

Paternity Suit Filed

The parents were not married when the child was born, but lived together until the father was deployed a few months later. The father did not move back in when he returned from his deployment.

The Office of the attorney general petitioned to establish the relationship between the father and the child.  The father was adjudicated to be the father and was given the exclusive right to designate the child’s primary residence with a geographic restriction in a temporary order.  The mother was given a standard possession order and required to pay child support.

At the final hearing, the court appointed the father as sole managing conservator.  The court named the mother possessory conservator and awarded her two hours of supervised visitation on specified Saturdays.  She was also to have daily electronic communication with the child.

Mother Appeals Custody Determination

The mother appealed.  She argued the court erred in naming the father sole managing conservator, because there was a rebuttable presumption she should be named joint managing conservator. She also argued the prohibition on naming a parent joint managing conservator if there was credible evidence of a history or pattern of child neglect or physical or sexual abuse only applied to conduct directed toward the child.  Finally, she argued there was not sufficient evidence to show she had a history or pattern of family violence.

The father presented evidence that the mother had punched him, tried to kick in his apartment door while he was inside with the child, punched him and threw things at him while he was holding the baby, and slapped him on two occasions.  The mother admitted to slapping the father and the woman with him on one of those occasions and had pleaded no contest to assault family violence and assault.

The mother testified the father had hit, choked, stalked, and raped her.  She also testified he had stolen her phone and car.  The grand jury had no-billed the charges arising from the choking allegation.  No charges had been filed related to the alleged theft.

The appeals court pointed to the definition of family violence in Tex. Fam. Code § 71.004(1), which includes an act by one family member against another family member.  It is not limited to acts against the child.

The trial court was responsible for determining the weight and credibility of the evidence before it.  The trial court could have reasonably found the mother had a history of family violence based on the evidence.  The court therefore could have found the presumption was rebutted.

The issue, then, was whether it was child’s best interest for the father to be named sole managing conservator. Courts may consider a number of factors in determining the child’s best interest, including the child’s desires, the child’s current and future needs, current and future emotional and physical danger to the child, parental abilities, available programs, plans of the parents, stability of the home, the parents’ acts or omissions that may indicate the relationship is not proper, and any excuse for the parents’ acts or omissions.

The appeals court found there was sufficient evidence to support findings that the father met the child’s needs, was able to care for the child and had a plan, and that he provided a stable home for her.  There was also sufficient evidence for the court to find the mother had a history of family violence against the father and posed emotional or physical dangers to the child. The trial court did not abuse its discretion in naming the father sole managing conservator.

The mother also argued the trial court abused its discretion in only allowing her limited visitation instead of a standard possession order.

The appeals court noted the standard possession order does not apply to children under three.  Tex. Fam. Code § 153.251(d). For such young children, the court is charged with rendering an appropriate order under the circumstances, considering a number of factors. A court must also consider family violence when determining whether to deny or impose restrictions or limitations. Tex. Fam. Code 153.004(c).

The Texas Family Code does not permit a court to allow a parent access to a child if a history or pattern of committing family violence within two years before the petition or during the pendency of the suit is shown by a preponderance of the evidence unless the court finds allowing access would not endanger the child and would be in the child’s best interest.  The court must also render an order designed to protect the child’s and any other victim’s safety and well-being. Tex. Fam. Code § 153.004. The order may require supervision by someone chosen by the court, exchanges in a protective setting, abstention from consuming alcohol or controlled substances within 12 hours before or during the period of access, or completion of a “battering intervention and prevention program.”  The court must, however, limit restrictions on the parent’s right of possession to those required to protect the child’s best interest, but there is a rebuttable presumption that unsupervised visitation is not in the child’s best interest if there is credible evidence the parent has a history or pattern of committing family violence.  Tex. Fam. Code § 153.004.

Based on the evidence, the trial court could have reasonably concluded that allowing the mother only supervised limited periods of possession and daily electronic access were necessary to protect the child’s safety and well-being.  The appeals court found no abuse of discretion in the trial court granting the mother limited and supervised visitation.

The appeals court affirmed the trial court’s order.

Family Violence Impacts Custody Determinations; Call McClure Law Group Today.

This case shows how family violence can affect custody. A parent’s access to a child can be severely limited if the parent has a history or pattern of family violence.  If you are engaged in a custody dispute involving a history of family violence, a skilled Texas child custody attorney can help you fight for a custody arrangement that is in your child’s best interest. Schedule a consultation with McClure Law Group by calling 214.692.8200.