Effects of DV in Divorces and SAPCRs

Question 1

Domestic Violence in Divorce Actions

Answer 1

• Can eliminate the waiting period in a divorce if respondent was found convicted of or received deferred adjudication for an offense involving family violence against the petitioner or a member of petitioner’s household; or if petitioner has an active protective order or MAG PO.
• Court can grant a PO in a divorce action, and if granted must be its own, freestanding, separate order (not part of the final decree).
• Can grant a disproportionate share of the community property.
• Can make a person eligible for spousal maintenance and/or used a factor for court to consider awarding spousal maintenance.

PO must be freest standing because it is the only thing that is uploaded into the DPS PO database

Question 2

Domestic Violence in SAPCRs Tex. Fam. §153.004 (a)

Answer 2

In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

Question 3

**Tex. Fam. Code §153.004 (b)
Presumption SMC or PMC not in best interest **

Flips Presumption of Conservatorship

Answer 3

The court may not appoint joint managing conservators if credible evidence is presented of 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 in violation ofSection 22.011or22.021, Penal Code, that results in the other parent becoming pregnant with the child.  A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

Question 4

Tex. Fam. Code Tex. Fam. Code §153.004 (c)
Possession Determination

Domestic Violence but not in the last 5 years, can court consider it? Yes. Can look at it to determine history / pattern

Answer 4

(c) The court shall consider the commission of family violence or sexual abuse in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.

Question 5

Tex. Fam. Code §153.004 (d)
Access

Answer 5

• (d) The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:
• (1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit;  or
• (2) the parent engaged in conduct that constitutes an offense underSection 21.02,22.011,22.021, or25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child.

Question 6

Tex. Fam. Code
§153.004 (d-1)

Answer 6

• (d-1) Notwithstanding Subsection (d), the court may allow a parent to have access to a child if the court:
• (1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child;  and
• (2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
• (A) the periods of access be continuously supervised by an entity or person chosen by the court;
• (B) the exchange of possession of the child occur in a protective setting (neutral site);
• (C) the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child;  or
• (D) the parent attend and complete a battering intervention and prevention program as provided byArticle 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment underSection 153.010 (order for family counseling).

subsection c, in conjunction with neutral exchange site. If party is under the influence they cannot take the child,

Question 7

**Tex. Fam. Code §153.004 (e)
Rebuttable Presumption Unsupervised Visits **

Answer 7

• (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 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.

Question 8

Tex. Fam. Code §153.004 (f)
Consideration of PO

Answer 8

(f) In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or abuse or family violence by a parent or other person, as applicable, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, 1against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit.