Family Violence: Conservatorship and Protective Orders
Updated: Jan 31, 2022
In a suit for conservatorship, a trial court must consider the best interest of the child and should consider applicable Texas public policy. See Tex. Fam. Code §§ 153.001, 153.002. The appointment of both parents as joint managing conservators is presumed to be in a child’s best interest. Tex. Fam. Code § 153.131(b). The court should make a conservatorship order that ensures the child has frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provides a safe, stable, and nonviolent environment for the child; and encourages parents to share in the rights and duties of raising their child. Tex. Fam. Code § 153.001(a); see e.g., In re Marriage of Christensen, 570 S.W.3d 933, 938 (Tex. App.—Texarkana 2019, no pet.).
A court may not appoint parents as joint managing conservators if credible evidence of a “history or pattern” of domestic violence is presented. Tex. Fam. Code § 153.004(b). The Fort Worth Court of Appeals focused on the “or” in this phrase and found that a history of domestic violence could be shown with a single event. C.C. v. L.C., No. 02-18-00425-CV, 2019 WL 2865294, at *8 (Tex. App.—Fort Worth 2019, no pet.) (mem. op.). However, practitioners should be careful not to infer the negative of this statement: Just because one incident can support a finding does not mean one single incident is always enough. As always, it depends.
Additionally, while the court shall consider acts of intentional violence that occurred within two years before the suit, there is no such time restriction on a finding of a history or pattern of violence. Tex. Fam. Code § 153.004(a)–(b); C.W. v. B.W., No. 02-19-00270-CV) (Tex. App.—Fort Worth 2020, no pet.) (mem. op.). In C.W., the mother sought sole managing conservatorship based in part on the father’s incarceration for rape of a minor child. The father argued that this charge could not be considered because it happened more than two years before the suit. The court held that there was no statutory time limitation on determining whether there was a history or pattern of abuse.
In addition to issues of conservatorship, the Family Code allows a party to obtain a protective order after a showing family violence has occurred and is likely to occur in the future. Tex. Fam. Code § 85.001. Typically, a final protective order under the Family Code is limited to two years. Tex. Fam. Code § 85.025(a). However, under some circumstances, a Family Code protective order can be longer. See Tex. Fam. Code § 85.025(a-1). If a party who is subject to a Family Code protective order communicates directly with a protected individual in a threatening or harassing manner, that can support a lifetime protective order. Copeland v. Copeland, No. 05-18-01431-CV, 2020 WL 4047969 (Tex. App.—Dallas 2020, no pet.) (mem. op.). In Copeland, the trial court had already issued a two-year protective order against the father. The mother filed suit to extend the protective order because the father had sent her threatening or harassing electronic messages, which is a criminal act pursuant to Texas Penal Code Section 25.07. Further, the statute provides that such an act is a felony if the act is committed two or more times in twelve months or less.
If you get a protective order against the opposing party, be careful in your order language when it comes to possession or access. If the protective order states that the father is never allowed to be around the children, but the possession order grants him a standard possession schedule, at best, you are going to have to get a clarification on how exactly that is supposed to work.
Finally, family violence does not necessarily require physical contact. See Kitchen v. Lucavage, No. 03-19-00421-CV, 2020 WL 3468147 (Tex. App.—Austin 2020, no pet.) (mem. op.). In Kitchen, a mother’s new husband was able to get a protective order against mother’s ex because the ex loomed over the new husband aggressively and threatened to “punch [him] in the mouth,” “kick [his] ass,” or “beat [his] ass.” The new husband testified that his heart would race during these incidents and that he was scared for his and his family’s safety. The new husband’s testimony was sufficient to support the issuance of the protective order.