Can I Get Sole Custody to Keep My Minor Child Safe?
Texas law assumes that when it comes to custody, children benefit from spending time with both parents. However, since the law also requires courts to base custody decisions on the best interests of the child, sole custody may be awarded where one parent presents a danger to the child. The presumption in Texas is that both parents will be named joint managing conservators of the child with equal rights and duties. One parent will be given the exclusive right to designate the primary residence of the child with or without a geographic restriction on where the child can live.
“Sole custody” is usually the phrase parents use when they are talking about designating the primary residence of the child, but a parent may be asking about how he or she can get sole managing conservatorship over the child, which is where the presumption of joint managing conservatorship is rebutted with evidence that one parent is a danger to the child.
How does the safety of the child factor into custody decisions in San Antonio?
Child custody in San Antonio rests on awards of two types of “conservatorship.” Orders for “managing conservatorship” determine which parents make decisions for the child on important issues such as education, health care, and religious upbringing, while orders for “possession and access and visitation” determine when and for how long a parent will see the child and under what restrictions. As stated above, joint managing conservatorship is the presumption in Texas with both parties having equal rights and duties over the child. The presumption for possession and access for the non-primary custodial parent is an extended standard possession order if you are within 50 miles of the primary custodial parent. Although Texas public policy (Family Code, Sec. 153.001) is to “assure that children will have frequent and continuing contact with parents” and to “encourage parents to share in the rights and duties of raising their child” after separation and divorce, those parents must “have shown the ability to act in the best interest of the child” and be “able to provide a safe, stable, and nonviolent environment for the child.” Where the safety of a child is threatened, sole conservatorship may be awarded to one parent.
When can a court award sole managing conservatorship to a parent, and when can the court restrict possession and access to the child by one parent?
Best interest of the child is always a focal point, but to be restricted from possession and access to your child or to be named sole managing conservator over your child, there must be evidence that the other parent is a danger to the child’s physical health or emotional stability.
- Joint managing conservatorship may be denied due to:
- A history or pattern of past or present child neglect, or
- Physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault;
- Illegal drug use or alcohol abuse;
- Other factors that show a parent is a danger to physical health or mental stability of the child.
- Possession and access and visitation with the child may be denied, restricted, or limited due to:
- Family violence;
- Sexual abuse;
- Illegal drug use or alcohol abuse;
- Neglect of the child;
- Any other factors that show a parent is a danger to the physical health or emotional stability of the child.
Additionally, a court may not allow a parent to have access to a child where a “preponderance” of the evidence shows that parent has:
- A history or pattern of committing family violence; or
- Engaged in certain kinds of sexual abuse or sexual assault that result in the pregnancy of the victim (Continuous Sexual Abuse of a Young Child or Disabled Person (Penal Code, Sec. 02), Sexual Assault, (Sec. 22.011), Aggravated Sexual Assault (Sec. 22.021), or Prohibited Sexual Assault (Sec. 25.02)).
However, a court may award the offending parent some form of supervised visitation if it:
- Would not endanger the child’s physical health or emotional welfare, and
- Would be in the best interest of the child; and
- The order is designed to protect the safety and well-being of the child and others who have been victimized by the offending parent’s family violence.
How can I protect my child before my custody order is final?
Custody orders are finalized when a divorce or a suit affecting the parent child relationship is completed. If you are concerned about the safety of your minor child before a final custody order is entered, court protection may be obtained sooner. A standing order providing certain protections applies to divorces and suits affecting the parent child relationship filed in many counties, including Bexar County, a Temporary Order and Temporary Restraining Order may be sought, and a parent may seek a Protective Order under The Family Code prohibiting family violence at any time if family violence has occurred and is likely to occur again in the future.
- Standing Order of the Court. The Civil District Judges’ Standing Order issued by Bexar County Civil Courts automatically applies to San Antonio divorce cases upon filing. That standing order regarding children, property, and the conduct of parties prohibits a range of conduct that would disrupt the children and regulates the conduct of the divorcing parents. For example, parents are prohibited from removing children from Texas or a school or day care center where they are enrolled, hiding children, changing the residence of a child, disturbing the peace of the children, making disparaging remarks about one another, discussing the litigation with the children or in front of them, consuming illegal substances, or entertaining romantic overnight guests. Parents also are ordered not to use “vulgar, profane, obscene, or indecent language,” or “a coarse or offensive manner” in their communications, not to threaten the other parent or take unlawful action, and not to call without “legitimate purpose” at an unreasonable hour, or in an “offensive or repetitious manner” or anonymously.
- Temporary Orders or Temporary Restraining Orders and Protective Orders. A parent may seek a temporary order to protect a child’s safety. “Temporary Orders Before Final Order” (Family Code, Sec. 105.001) provides the court may make a temporary order “for the safety and welfare of the child,” including for:
- Temporary conservatorship,
- Temporary support,
- Restraining a party from disturbing the peace of the child or another party,
- Prohibiting removing the child beyond a geographical area identified by the court,
- Attorney’s fees.
The judge will schedule and hold a hearing on the Temporary Orders request. The judge’s decision will stay in place until a final order is entered unless another temporary order modifies it.
However, in an emergency when immediate action is needed to protect a child before a hearing can be held, a parent may file for a Temporary Restraining Order. Unlike a Temporary Order, a Temporary Restraining Order (TRO) does not apply to custody, cannot order child support, but may order a party to stay away from a child or refrain from other action. A TRO may be entered without a hearing if a court believes the sworn statement of the movant rises to the level needed to grant the Temporary Restraining Order and will stay in place until the temporary orders hearing, or up to 14 days. A person violating a TRO is in contempt of court.
A parent who has filed for divorce and is awaiting a custody order also may file for a Protective Order before the judge where the application for divorce and custody is pending (Family Code, Sec. 85.062). However, a parent does not have to be part of divorce or custody proceedings to file for a Protective Order. An adult member of a family may file an application for a protective order to protect themselves, or any other member of the applicant’s family or household (Sec. 82.002). To obtain a family violence Protective Order, the parent must prove family violence has occurred and family violence is likely to occur in the future.
A Protective Order differs from a TRO in important respects. Protective Orders require a finding of family violence, and that family violence is likely to occur again in the future. Temporary Restraining Orders do not require these findings. Further, a person who violates a Protective Order will be reported to law enforcement to enable the filing of criminal charges. The statutorily required warning included with each protection order clearly states that it is unlawful for persons subject to “Protective Orders to possess a fireman or ammunition.” (Sec. 85.026). Persons subject to Protective Orders also may be prohibited from possessing firearms under other state laws. Federal law similarly prohibits persons subject to protective orders or convicted of domestic violence from possessing firearms (18 USC § 922(g)(8)(9)).
Custody decisions are supposed to be made in the best interests of the child. The San Antonio divorce and child custody lawyers at Grable Grimshaw PLLC understand the need to keep your child safe and free from family violence, or illegal drug use, and can represent you in divorce and custody proceedings. Call 210-963-5297 or fill out our contact form today to set up a free initial consultation with a member of our legal team.