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NEW LAW CHANGES HOW A FINDING OF FAMILY VIOLENCE AFFECTS CHILD CUSTODY.

Posted by Ed McClees | Aug 20, 2017 | 0 Comments

A new law changes the way a prior finding of family violence may affect child custody by creating a rebuttable presumption that it is not in the best interest of the child for a parent to have unsupervised visitation with a child if credible evidence is presented of a history or pattern of family violence from that parent.  This law also extends this presumption to people who live with the parent or who might otherwise receive unsupervised access to the child.

There are a series of crimes that can result in an affirmative finding of family violence.  These can include, but are not necessarily limited to the following: Assault Family Member, Terroristic Threat, Assault Family Member - Impeding Breathing, and others.  Even some relatively minor sounding Class C charges can result in an affirmative finding of family violence.

Simply put, if you are involved in a custody proceeding, an allegation that you committed any act of family violence could affect your ability to see your children without supervision. 

 The text of the amended statute is show below.  The new language expanding the areas to which the presumption against unsupervised visitation are underlined.

o Full Legislative History:  SB 495

o Statute:  TEX. FAMILY CODE § 153.004

Relevant Text:

Section 153.004, Family Code, is amended by amending Subsections (e) and (f) and adding Subsection (g) to read as follows:

(e)  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 child neglect or [physical or sexual] abuse or family violence by:

(1)  that parent; or

(2)  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 [directed against the other parent, a spouse, or a child].

 (f)  In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or [physical or sexual] abuse or family violence by a parent or other person, as applicable [directed against the other parent, a spouse, or a child], the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit.

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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