History of domestic violence or sexual abuse
The Texas courts will consider a person’s history of physical and sexual abuse when deciding whether to give a person child custody. “In determining whether to appoint a party as a sole or joint managing conservator,” is the specific language the Texas Family code is using. What is code referring to when it uses the terms sole or joint managing conservator?
The term conservatorship is utilized to designate the legal rights and responsibilities of a parent in relationship to the child that is the subject of the family court order. The Texas Family code has created to types of conservatorship 1. Sole, and 2. Joint. The presumption is that joint managing conservatorship is in the best interest of the child. This presumption can be rebutted if evidence is presented to the court that joint managing conservatorship is not in the best interest of the child.
The term sole managing conservator means that the person with this designation is the only person with the legal right to make certain decisions for the child. The general rights include:
1. determine the primary residence of the child;
2. consent to medical, dental, and surgical treatment involving invasive procedures;
3. consent to psychiatric and psychological treatment;
4. receive child support; and
5. make decisions concerning the child's education
The term joint managing conservatorship is utilized when the legal rights and duties of a parent are shared by both parties to the divorce or child custody case. While most of the rights are shared, certain rights will generally be exclusive to one party such as the right to receive child support and determine the primary residence of the child.
The Texas Family Code goes on to say that the courts shall consider “evidence of the intentional use of abusive physical for, or evidence of sexual abuse. The term “shall” means that the court does not have a choice. The court has no choice, but to consider this evidence described above. The courts shall consider this evidence only when a party to the divorce or child custody case has directed the abusive physical or sexual abuse towards the spouse, 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.
The court may not appoint a party as a joint managing conservator when credible evidence is presented that the party has a history or pattern of engaging in the behavior described above.
However, this creates merely a preference. In a child custody dispute between to parents the Texas code allows such evidence that weighs heavily against the violent parent.