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Specialty tag(s): Child Custody, Pre-Divorce Guidance, High-Conflict Divorce, Divorce

Alleging Domestic Violence in a Divorce: How Family Violence Accusations Affect a Child Custody or Divorce Case

Mona Hosseiny-Tovar | March 12, 2024

A divorce can sometimes come about because of domestic violence. Divorce in these cases is often the result of long-standing abuse or the boiling over after many years of wrongs not made right. Sometimes, a partner may not feel safe anymore and will want to combine a divorce petition with an emergency request for relief that permits the court to restrain the abusing party from being in the presence of the abused party. This temporary restraining order has to be approved by a judge, and may cite family violence or abuse, whether physical or emotional, in the attached affidavit of the abused party.

How Family Courts View Allegations of Family Violence in Texas

Understanding how to prove family violence in Texas starts with understanding the burden of proof for the legal setting you’re in. If family violence has occurred between divorcing spouses, even if the police were never called or involved, the family courts will question the validity of the allegations using a very low standard; it’s likely that the courts will only minimally discredit the abused party if they chose not to involve the police when the incident occurred. The standard of proving whether family violence occurred or whether there is a history of family violence in a divorce or child custody case is much lower than it is in criminal court. When criminal charges are filed, you must prove “beyond a reasonable doubt” that the abuse occurred, which is the highest standard of proof. But, when you’re in civil court for a divorce due to domestic violence, the standard of proof is “preponderance of the evidence,” which means that the evidence is at least 51% in favor of showing that family violence occurred.

Navigating Both Criminal and Family Court Allegations of Domestic Violence in a Divorce in Texas

If the police did get involved and made an arrest, then the accuser will likely need to litigate these allegations in both criminal and family courts. When this happens, the accused party must be very careful when testifying in family court regarding the family violence incident, especially if there is a pending criminal family violence charge, because of the risk of self-incrimination. The accused spouse must consult with a lawyer to ensure that they do not incriminate themselves in a pending family case (e.g., divorce, custody, parental termination, or adoption) when there is a pending criminal charge relating to the same family violence incident. Anything testified to in civil proceedings during a divorce with domestic violence accusations can be used in criminal court, so it’s essential to have an experienced family law attorney representing you during these civil proceedings.

How Pending Charges of Family Violence Can Impact Divorce and Custody Cases

If family violence has occurred and criminal charges are pending, that may tip the scale more in favor of the accuser’s word to the family judge, as compared to an allegation of family violence for which the police were never called and/or there is not a pending criminal charge.

An arrest for family violence or a pending criminal charge of family violence can impact a pending divorce or child custody case, including the accused spouse’s custodial and visitation rights. This impact largely depends on how severe the family violence charge is and the level of injury alleged. It also depends on how much proof exists of the family violence incident, the injuries sustained, and whether there were witnesses to the abuse. It will often be a “he said, she said” occurrence that can only be proven with minimal evidence, largely relying on the testimony of the accuser and the accused.

If testimony from either party states that the couple’s children were present during the family violence incident or were eyewitnesses to the fight between their parents, that can also negatively impact the alleged abuser. That testimony alone could be cause for a judge to restrict that parent’s visitation rights in some form or even require that parent’s visitation times to be supervised by a chosen party or a third-party entity.

It’s important to keep in mind that a criminal charge and arrest are much different than a criminal conviction or final disposition. A criminal conviction means that the accused pleaded or was found guilty in criminal court and must face some sort of punishment, such as paying fines, jail time, community service, or probation.

The Weight of Criminal Charges and Convictions of Domestic Violence in Divorce or Custody Cases

When a criminal charge is pending and has not reached a final disposition in criminal court, the accused party does not necessarily lose custodial rights or visitation rights to their children. The accuser must prove in family court that it’s more likely than not that there was family violence under Texas divorce law in order to obtain sole managing conservatorship of the children (otherwise known as full custody) and a restricted visitation schedule for the accused parent. However, if the accused parent has been convicted of family violence perpetrated against their spouse, the Texas Family Code allows for the victim to obtain sole managing conservatorship of the children. Supervised visitation time for the parent convicted of domestic violence after the divorce may be scheduled in two-to-three-hour blocks of time every weekend or every other weekend.

The Importance of Legal Representation in Divorce and Family Violence Cases

Having a knowledgeable divorce attorney who is experienced in handling sensitive matters, such as family violence, is crucial to a family law case, as it pertains to custodial rights and visitation. Once the family court makes a finding of family violence, it is very hard to convince the judge that despite that finding, it is in the best interest of the children to award the parties shared or joint custodial rights and a standard visitation schedule.

If you are facing a divorce in Texas that includes allegations of family violence, contact Goranson Bain Ausley today. The skilled divorce attorneys at GBA offer a wealth of experience managing divorce and domestic violence cases and will leverage their specialized skills to help you navigate the path forward through the divorce process.

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