C. Judicial Responses to Child Welfare Cases Involving Domestic Violence
Judges may consider taking the following steps to have a positive impact on the safety and stability of families experiencing domestic violence:
• Keep the children's safety in mind: It is common for the perpetrator to use the children to control the survivor parent. Perpetrators may threaten to gain sole custody, kill, kidnap, or otherwise harm children if the survivor parent leaves. Services, planning, and hearings should be conducted with the safety and well-being of the children as a primary concern and in the context of domestic violence dynamics.
• Keep the domestic violence survivor parent's safety in mind: If virtual hearings or separate testimony/hearings are an option, consider allowing the survivor parent to make the decision about which hearing format suits their safety needs. In addition to upholding the victim-advocate privilege as outlined later in this section regarding Tex. Fam. Code Chapter 93, judges might consider holding separate hearings at different times to discuss each parent's individual portion of the case if there are concerns by the survivor parent about continued use of intimidation, threats, manipulation, or retaliation by the perpetrator. Also, the child's safety and well-being are closely connected to that of the survivor parent.
• Address the trauma of removing children from the survivor parent: Considerations may include placing the children with relatives or fictive kin that the survivor parent identifies as safe and supportive for the shortest duration while the survivor parent plans for their next step and seeks safety. Note that placement with the perpetrator's family could lead to continuing coercion and/or collusion against the survivor parent by the perpetrator or the perpetrator's family depending on their relationship with the perpetrator.
• Recognize the effects of trauma for the survivor parent: Trauma, such as that which a victim of domestic violence experiences, can affect memory and behavioral responses. Recognizing the complex nature of trauma can allow for an understanding of how traumatic experiences can shape survivor parents' responses in a child welfare case, as such responses may differ from those which are typically expected.
• Recognize the danger of separation: Separation from an abusive partner increases the risk of lethality when domestic violence is a dynamic in the relationship, as can pursuing legal options such as protective orders, divorce, custody, and mediation. Additionally, because the perpetrator's actions often directly involve, target, and impact the children in the family, the fear of being harmed might impact the information that the survivor parent and their children share with caseworkers or other individuals.
• Order additional services to address the parenting and behavior choices that the perpetrator is inflicting on the survivor and the children: This may include mental health support and substance use services as well as Batterer Intervention and Prevention Programs (BIPPs) discussed in more detail below.
• Recognize the benefits of supervised visitation: Limiting and/or supervising the access of the perpetrator is best provided by a supervised visitation and exchange program whose staff are trained in the dynamics of domestic violence. Trained staff can identify when a perpetrator is using the children to control the survivor parent or to gain access to information, including new contact information. If the visits cannot be supervised by trained staff, then it is recommended to consult with the survivor parent about who they can identify as a safe person and arrange for that person to provide for access and visitation with the children for the survivor parent.
• Create a Service Plan based on the survivor's experiences and strengths: Judges can encourage a culture where the survivors' experiences are heard, valued, and considered in safety planning, and where the survivor parent's supports, strengths, and protective factors are identified and bolstered. Service plans should be tailored to address safety concerns and should include input from the survivor parent.
• Include the survivor parent in placement decisions: When possible, keeping the children and survivor parent safe and together is preferred. If separation must occur due to safety concerns, judges can request input from the survivor parent about placement for the children with relatives or fictive kin who the survivor parent trusts. This should be a time-limited placement that allows for safe visitation by the survivor parent and should address any safety concerns that the survivor parent identifies.
• Recognize the potential for ongoing domestic violence during the CPS case, even if the parents are separated: A perpetrator can continue to intimidate, manipulate, and harm a survivor parent during a child welfare case. Some examples might include using the children to garner information about the survivor parent, making false reports to CPS or to law enforcement and/or filing for a protective order under false allegations to control the survivor parent, taking away access to transportation or funds, tracking phone calls and the location of the survivor parent, and violating stay-away orders. An option for safe communication can be through a phone app such as Our Family Wizard. Also, judges should be aware that records kept by child welfare caseworkers can be requested and obtained by the perpetrator, and that these records can give the perpetrator access to the survivor parent's or child(ren)'s location and increase the danger posed to them. Such confidentiality concerns can be addressed through redaction.
• Consider how to maintain safety in mediation: In cases involving domestic violence, judges and attorneys should ensure that the mediator has completed the required minimum four hours of training on family violence per the Tex. Civ. Prac. & Rem. Code § 153.052 and consider selecting a mediator who has specific expertise or experience mediating with parents for whom domestic violence is an issue. In addition, judges and attorneys should solicit feedback from the domestic violence victim/survivor parent about what precautions should be implemented and consider orders to ensure the safety of all parties participating in mediation. Finally, related information and suggestions on best practices about mediation when domestic violence is involved can be found in the Texas Council on Family Violence Child Custody Mediators Training Series and Children's Commission Mediation Round Table Report.
Effective September 1, 2023, judges no longer need to find that family violence is “likely to occur in the future” in order to issue a family violence protective order under the Family Code. All references that family violence is “likely to occur in the future” have been struck from the Family Code and the Code of Criminal Procedure. Additionally, the presumption that that family violence has occurred in Tex. Fam. Code 81.005 no longer contains language that family violence is "likely to occur in the future" and strikes that the respondent is "seeking or attempting to seek contact with the child" from the list of conditions that trigger the presumption.