Understanding the interplay between domestic violence and child custody

Often domestic violence allegations originate in a child custody or a divorce proceeding.  These allegations are brought by the opposing party, and are sometimes mere fabrications to gain an advantage.  The allegations are serious and family court judges treat them as such.  Unofficially, some judges switch the burden to the accused to disprove the allegations.  Smart lawyers will advise their clients to invoke their right against self-incrimination until a full investigation can be completed. 

Family violence can be considered to deny, restrict, or limit the possession of a child by a parent who is appointed possessory conservator.  This means that if the family judge finds domestic violence occurred then the judge could prevent a parent from having access to their child under section 153.004 of the Texas Family Code. 

A conviction or a deferred adjudication for a domestic violence offense is grounds for a modification of a child custody order under section 156.1045 of the Texas Family Code.  If a person pleads guilty to a Class C misdemeanor assault, and receives deferred adjudication (probation where the person is never found guilty), this is enough to completely change the custody order.  Failure of an attorney to understand this can result in serious consequences. 

Domestic violence allegations provide grounds for divorce.  Cruelty is a ground for divorce.  Additionally, fault in the breakup can be used to award one spouse a disproportionate share of the community assets acquired during the marriage. 

This is a mere overview.  It is important for an attorney handling either the criminal case or the family case to understand how family violence impacts a person’s family law case.  A lawyer who does not understand how these two areas of the law interconnect will not be able to provide you with the best advice.  Call Brian J. Newman to discuss your cases that involve family law issues. 

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