Will I Lose Custody of My Kids if I’m Arrested?

 Posted on November 11, 2022 in Uncategorized

Facing an arrest is always frightening. The threat of possible jail time, fines, and damage to your reputation is anxiety-inducing. But if you have joint custody of your children after a separation or divorce, your biggest concern may be what can happen to your custody arrangements. Can you lose custody or visitation? Even if your split was amicable and you and your ex can co-parent without conflict, an arrest, particularly for a serious charge, could throw that into jeopardy. That's why your first step after an arrest should be to hire an expert in criminal defense law to ensure you have the best possible outcome in your case and to discuss the possible effects on your child custody arrangements.

Custody Decisions in Texas

Texas courts typically divide custody decisions into two categories, conservatorship and "possession and access."

1. Conservatorship

Conservatorship refers to who has the right to make major decisions for a child, including medical, educational, and religious decisions. The parents often share these decisions in a joint managing conservatorship. In others, one parent may make all the decisions in a sole managing conservatorship. In determining whether one or both parents make decisions for a child, the court will decide what is in the "best interests of the child." While a joint conservatorship is typical, the court may not choose a joint conservatorship if one parent has a history of abuse or neglect, family violence, alcohol or drug abuse, or abandonment.

2. Possession and Access

Possession and access refer to the parent with physical custody or visitation. Texas has two schedules for possession and access, including standard and extended standard schedules. However, parents can agree on any schedule that suits their needs.

3. Best Interests of the Child

In evaluating the "best interests of the child," the court will look at the child's safety and consider the following:

1. the child's age and physical and mental vulnerabilities;
2. the frequency and nature of out-of-home placements;
3. the magnitude, frequency, and circumstances of the harm to the child;
4. whether the child has been the victim of repeated harm after the initial report and intervention by the department;
5. whether the child is fearful of living in or returning to the child's home;
6. the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;
7. whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
8. whether there is a history of substance abuse by the child's family or others who have access to the child's home;
9. whether the perpetrator of the harm to the child is identified;
10. the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
11. the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time;
12. whether the child's family demonstrates adequate parenting skills, including providing the child and other children under the family's care with:

(A) minimally adequate health and nutritional care;

(B) care, nurturance, and appropriate discipline consistent with the child's physical and psychological development;

(C) guidance and supervision consistent with the child's safety;

(D) a safe physical home environment;

(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and

(F) an understanding of the child's needs and capabilities; and

(13) whether an adequate social support system consisting of an extended family and friends is available to the child.

Tex. Fam. Code § 263.307 (2021).

Some common ways that a parent might lose custody of a child in Texas include:

• Domestic violence,
• Child neglect or abuse,
• Abuse allegations,
• Parental alienation,
• Refusal to parent,
• Child abduction,
• Mental health issues, and
• Chronic substance or alcohol abuse.

Domestic Violence Charges in Texas

It's important to note that domestic violence charges in Texas aren't limited to simple assault. The most common charges for domestic-related assault in Texas include domestic assault, aggravated domestic assault, and continuous violence against a family. But "family violence" also includes:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse [...] by a member of a family or household toward a child of the family or household; or

(3) dating violence [...].

In other words, even threats that put a family member in fear of imminent physical harm could qualify as family violence and could result in charges that might affect your custody arrangements.

Depending on what criminal charges you face, losing custody or visitation of your child could be a real possibility. If you're facing allegations of abuse, domestic violence, child abduction, a drug or alcohol-related charge, or a violent felony, the consequences can be serious, and you need to consult an experienced criminal defense attorney right away.

You Need a Board Certified Expert in Texas Criminal Defense Law

If you're facing criminal charges in Texas, particularly if those charges involve violence, family violence, drugs or alcohol, or abuse, you need expert legal guidance as soon as possible. Attorney Doug Murphy is a board-certified expert in Criminal Defense Law and DWI Defense. He is one of only two Texas attorneys to obtain the expert designation in both of these areas of the law. Doug was also recently named a 2023 "Lawyer of the Year" for DWI defense in Houston by Best Lawyers in America. This is a designation voted on by Doug's fellow Houston lawyers. Doug and his skilled legal team at the Murphy & McKinney Law Firm, P.C. have helped many people through criminal charges, and they can help you too. Give them a call at 713-229-8333, or contact them online to schedule your consultation.