How Do I Get Custody from Abusive Parent?

Full Question:

How do I obtain emergency custody of children from unfit parent to non custodial parent in Texas. I need forms for pro se to get immediate custody of my children. They are in danger and I don't want to involve CPS. I need an emergency hearing.
07/30/2009   |   Category: Divorce ยป Child Custody   |   State: Texas   |   #17869

Answer:

A child custody order may be modified based on a significant change of circumstances. If a parent is found guilty of child abuse charges, that is considered a significant change that warrants modifying a custody order.

A parent may also have rights terminated, either by voluntary relinquishment or judicial termination. A judicial termination requires proof that the parent is unfit and/or poses a threat of harm to the child. The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, or the parent is convicted an a child abuse offense. A termination of parental rights voids any rights and obligations toward the child. The parent will no longer have rights to custody or visitation and will no longer owe a duty of support. However, it is possible that back support owed may still be collected.

We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the forms below and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.


The following are TX statutes:


§ 156.104 FAM. Modification of Order on Conviction for Child Abuse;
Penalty


(a) Except as provided by Section 156.1045, the conviction of a
conservator for an offense under Section 21.02, Penal Code, or the
conviction of a conservator or an order deferring adjudication with
regard to the conservator, for an offense involving the abuse of a child
under Section 21.11, 22.011, or 22.021, Penal Code, is a material and
substantial change of circumstances sufficient to justify a temporary
order and modification of an existing court order or portion of a decree
that provides for the appointment of a conservator or that sets the terms
and conditions of conservatorship or for the possession of or access to a
child.

(b) A person commits an offense if the person files a suit to modify an
order or portion of a decree based on the grounds permitted under
Subsection (a) and the person knows that the person against whom the
motion is filed has not been convicted of an offense, or received
deferred adjudication for an offense, under Section 21.02, 21.11, 22.011,
or 22.021, Penal Code. An offense under this subsection is a Class B
misdemeanor.

§ 264.752 FAM. Relative and other Designated Caregiver Placement Program


(a) The department shall develop and procure a program to:

(1) promote continuity and stability for children for whom the
department is appointed managing conservator by placing those children
with relative or other designated caregivers; and

(2) facilitate relative or other designated caregiver placements by
providing assistance and services to those caregivers in accordance with
this subchapter and rules adopted by the executive commissioner.

(b) To the extent permitted by federal law, the department shall use
federal funds available under Title IV-E, Social Security Act (
42 U.S.C. Section 670 et seq.), to administer the program under this
subchapter.

(c) The executive commissioner shall adopt rules necessary to implement
this subchapter. The rules must include eligibility criteria for
receiving assistance and services under this subehapter.

262.109 FAM. Notice to Parent, Conservator, or Guardian


(a) The department or other agency must give written notice as
prescribed by this section to each parent of the child or to the child's
conservator or legal guardian when a representative of the Department of
Protective and Regulatory Services or other agency takes possession of a
child under this chapter.

(b) The written notice must be given as soon as practicable, but in any
event not later than the first working day after the date the child is
taken into possession.

(c) The written notice must include:

(1) the reasons why the department or agency is taking possession of
the child and the facts that led the department to believe that the
child should be taken into custody;

(2) the name of the person at the department or agency that the
parent, conservator, or other custodian may contact for information
relating to the child or a legal proceeding relating to the child;

(3) a summary of legal rights of a parent, conservator, guardian, or
other custodian under this chapter and an explanation of the probable
legal procedures relating to the child; and

(4) a statement that the parent, conservator, or other custodian has
the right to hire an attorney.

(d) The written notice may be waived by the court at the initial
hearing:

(1) on a showing that:

(A) the parents, conservators, or other custodians of the child
could not be located; or

(B) the department took possession of the child under Subchapter
D; or

(2) for other good cause.

§ 262.112 FAM. Expedited Hearing and Appeal


(a) The Department of Protective and Regulatory Services is entitled to
an expedited hearing under this chapter in any proceeding in which a
hearing is required if the department determines that a child should be
removed from the child's home because of an immediate danger to the
physical health or safety of the child.

(b) In any proceeding in which an expedited hearing is held under
Subsection (a), the department, parent, guardian, or other party to the
proceeding is entitled to an expedited appeal on a ruling by a court that
the child may not be removed from the child's home.

(c) If a child is returned to the child's home after a removal in which
the department was entitled to an expedited hearing under this section
and the child is the subject of a subsequent allegation of abuse or
neglect, the department or any other interested party is entitled to an
expedited hearing on the removal of the child from the child's home in
the manner provided by Subsection (a) and to an expedited appeal in the
manner provided by Subsection (b).

§ 161.001 FAM. Involuntary Termination of Parent-child Relationship


The court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence:


(1) that the parent has:

(A) voluntarily left the child alone or in the possession of another
not the parent and expressed an intent not to return;

(B) voluntarily left the child alone or in the possession of another
not the parent without expressing an intent to return, without providing
for the adequate support of the child, and remained away for a period of
at least three months;

(C) voluntarily left the child alone or in the possession of another
without providing adequate support of the child and remained away for a
period of at least six months;

(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;

(E) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being
of the child;

(F) failed to support the child in accordance with the parent's ability
during a period of one year ending within six months of the date of the
filing of the petition;

(G) abandoned the child without identifying the child or furnishing
means of identification, and the child's identity cannot be ascertained
by the exercise of reasonable diligence;

(H) voluntarily, and with knowledge of the pregnancy, abandoned the
mother of the child beginning at a time during her pregnancy with the
child and continuing through the birth, failed to provide adequate
support or medical care for the mother during the period of abandonment
before the birth of the child, and remained apart from the child or
failed to support the child since the birth;

(I) contumaciously refused to submit to a reasonable and lawful order
of a court under Subchapter D, Chapter 261;

(J) been the major cause of:

(i) the failure of the child to be enrolled in school as required by
the Education Code; or

(ii) the child's absence from the child's home without the consent of
the parents or guardian for a substantial length of time or without the
intent to return;

(K) executed before or after the suit is filed an unrevoked or
irrevocable affidavit of relinquishment of parental rights as provided by
this chapter;

(L) been convicted or has been placed on community supervision,
including deferred adjudication community supervision, for being
criminally responsible for the death or serious injury of a child under
the following sections of the Penal Code or adjudicated under Title 3 for
conduct that caused the death or serious injury of a child and that would
constitute a violation of one of the following Penal Code sections:

(i) Section 19.02 (murder);

(ii) Section 19.03 (capital murder);

(iii) Section 19.04 (manslaughter);,

(iv) Section 21.11 (indecency with a child);

(v) Section 22.01 (assault);

(vi) Section 22.011 (sexual assault);

(vii) Section 22.02 (aggravated assault);

(viii) Section 22.021 (aggravated sexual assault);

(ix) Section 22.04 (injury to a child, elderly individual, or disabled
individual);

(x) Section 22.041 (abandoning or endangering child);

(xi) Section 25.02 (prohibited sexual conduct);

(xii) Section 43.25 (sexual performance by a child);

(xiii) Section 43.26 (possession or promotion of child pornography);
and

(xiv) Section 21.02 (continuous sexual abuse of young child or
children);

(M) had his or her parent-child relationship terminated with respect to
another child based on a finding that the parent's conduct was in
violation of Paragraph (D) or (E) or substantially equivalent provisions
of the law of another state;

(N) constructively abandoned the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services or an authorized agency for not less than six months,
and:

(i) the department or authorized agency has made reasonable efforts to
return the child to the parent;

(ii) the parent has not regularly visited or maintained significant
contact with the child; and

(iii) the parent has demonstrated an inability to provide the child
with a safe environment;

(O) failed to comply with the provisions of a court order that
specifically established the actions necessary for the parent to obtain
the return of the child who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child's removal
from the parent under Chapter 262 for the abuse or neglect of the child;

(P) used a controlled substance, as defined by Chapter 481, Health and
Safety Code, in a manner that endangered the health or safety of the
child, and:

(i) failed to complete a court-ordered substance abuse treatment
program; or

(ii) after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance;

(Q) knowingly engaged in criminal conduct that has resulted in the
parent's:

(i) conviction of an offense; and

(ii) confinement or imprisonment and inability to care for the child
for not less than two years from the date of filing the petition;

(R) been the cause of the child being born addicted to alcohol or a
controlled substance, other than a controlled substance legally obtained
by prescription, as defined by Section 261.001;

(S) voluntarily delivered the child to a designated emergency infant
care provider under Section 262.302 without expressing an intent to
return for the child; or

(T) been convicted of the murder of the other parent of the child under
Section 19.02 or 19.03, Penal Code, or under a law of another state,
federal law, the law of a foreign country, or the Uniform Code of
Military Justice that contains elements that are substantially similar to
the elements of an offense under Section 19.02 or 19.03, Penal Code; and

(2) that termination is in the best interest of the child.


§ 156.101 FAM. Grounds for Modification of Order Establishing
Conservatorship or Possession and Access


The court may modify an order that provides for the appointment of a
conservator of a child, that provides the terms and conditions of
conservatorship, or that provides for the possession of or access to a
child if modification would be in the best interest of the child and:


(1) the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially changed since the
earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law
settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has filed with the
court, in writing, the name of the person who is the child's preference
to have the exclusive right to designate the primary residence of the
child; or

(3) the conservator who has the exclusive right to designate the
primary residence of the child has voluntarily relinquished the primary
care and possession of the child to another person for at least six
months.

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