All too often a parent will vow to fight for “full custody” with a scare tactic of threatening to take the children away if the other parent does not agree to do whatever he or she wants. It is very rare for a court in Texas to terminate a parent’s rights entirely, meaning only one parent would have the right to make all the decisions for the child (legal custody or “conservatorship”) and have the right to all the parenting time (physical custody or “possession”) of the child to the absolute exclusion of the other parent. A parent would be wise to understand how it works and what he or she would have to prove before making a threat like that, which is almost universally met with an expensive, long, and devastating custody battle in court rather than with the other parent’s giving in.
Parental termination cases in Texas are not about emotion, they are about the law. In most cases, to terminate a parent’s rights in Texas the court must first find by clear and convincing evidence (not the lower standard of preponderance of the evidence) one of the following grounds for termination under Family Code section 161.001(b), and then second, the termination must be in the best interest of the child.
Family Code section 161.00(b) says:
(b) 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 under a law of another jurisdiction that contains elements that are substantially similar to the elements of an offense under one of the following Penal Code sections, 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);
(xiv) Section 21.02 (continuous sexual abuse of young child or children);
(xv) Section 20A.02(a)(7) or (8) (trafficking of persons); and
(xvi) Section 43.05(a)(2) (compelling prostitution);
(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 for not less than six months, and:
(i) the department 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;
(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:
(i) 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;
(ii) criminal attempt under Section 15.01, 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 15.01, Penal Code, to commit the offense described by Subparagraph (i); or
(iii) criminal solicitation under Section 15.03, 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 15.03, Penal Code, of the offense described by Subparagraph (i); and
(2) that termination is in the best interest of the child.
There certainly are cases where there is clear and convincing evidence of one or more of the above factors and it is truly in the best interests of a child for the court to terminate a parent’s parental rights and to give “full custody” to one parent. But after reading this list it should be abundantly clear to any parent who is thinking about threatening “full custody” that it is not a claim the courts take lightly. It requires evidence and proof. A parent who is considering seeking termination of the other parent's rights must think seriously about how he or she would do that.
It is common for parents who are unfamiliar with the court system to believe naively that all he or she has to do is walk into court and tell the judge why the other is a bad or unfit parent and the judge will make a decision right there to give full custody. This assumption could not be further from reality.
In Texas, an involuntary termination of parental rights case is one of the longest and most costly kinds of litigation. Cases can last years, and cost literally hundreds of thousands of dollars in attorney’s fees on each side. Lawyers for each parent must prepare for and conduct a trial and that costs a lot of money.
The parent who is seeking full custody and the parent who is resisting it are each responsible to pay in advance for every minute a parent’s lawyer or staff spends on the case and all the costs a lawyer incurs including copy charges, postage, private investigators, process servers, parking at the courthouse, costs for obtaining documents, deposition and transcript fees for the court reporter, filing fees for court documents, etc. There is no “contingency fee” in family law. It’s not like a car wreck case where an injured person does not have to pay the lawyer unless the lawyer wins.
To the contrary, family lawyers want to be paid in advance in the form of a retainer which is an amount of money the lawyer will require before starting work. The lawyer deducts from the retainer his or her expenses and hourly fees, and when the money in the retainer runs out, the lawyer will ask for more before continuing work.
Lawyers are well aware of how much time., effort, and expense a custody battle will take. It is not uncommon for each of the parent’s lawyers to ask for upwards of $30,000- $40,000 for the first retainer just to get started looking into a custody case. This phase is called “discovery” which includes requesting official documents, talking to witnesses, and exchanging between the two parents the answers to:
1. Interrogatories;
2. Request for Production of Documents;
3. Request for Disclosure; and
4. Request for admissions.
Each lawyer will also likely hire an expert witness who is paid by the hour to offer an opinion and to testify about the other parent’s unfitness to be a parent. Witnesses and experts are usually deposed, meaning the lawyers get to ask them questions under oath at substantial cost, and those witnesses and experts may be subpoenaed to appear at trial where they get paid again. Trial preparation will be done on each side, which doubles the expense to the family.
If before the case is tried the judge orders mediation, each lawyer will likely ask for $10,000 - $15,000 before mediation to pay for the lawyer’s preparation for and time at mediation. If the parents cannot reach agreement in mediation, the lawyer will likely request an additional $20,000 - $50,000 or more before agreeing to represent the parent at trial. Custody trials can last days, weeks, months, or years. Some parents fight for so long that the child becomes an adult before they are finished in the courts. This is because parents could spend all that money and not be finished after a trial. Trial decisions in most cases are appealable. The trial may only be the start of the court actions, not the end. The cost of appeal can be $10,000 to over $100,000 and the court of appeals could reverse what the trial court judge originally decided.
The parents need to know as well that if a parent runs out of money to pay his or her lawyer, the lawyer can withdraw, leaving the parent unrepresented right in the middle of the huge, nasty, and expensive battle the parents got themselves into. However, judges are more than aware of the strategy some lawyers use to create so much conflict and expense for the other side that the other side runs out of money or gives up. The judge does have discretion to make one parent pay some or all of the other parent’s lawyer’s fees in addition to their own so beware.
The toll on the parents is not only money. Parents who fight over children just to spite the other parent will find that it runs both ways. Imagine what it would feel like to testify on the witness stand in front of strangers about how unfit the other parent is, and then to have to endure the other parent’s and his or her lawyer's accusations in return. A parent who alleges the other parent is unfit should expect to be accused of bad things too, whether true or made up. False allegations are punishable as criminal and civil offenses.
But that’s the least of a parent’s problems if they really go at each other. Parents simply do not know that when a judge hears about the unfitness of both parents, the judge is not required to give custody to the “less unfit” parent. If the judge finds evidence the child could be endangered by each of the parents, the judge has the power to immediately order the child to be removed from the home and placed in foster care.
Everything about a custody battle hurts a child. The parents’ relationship will be destroyed and their willingness to cooperate with each other to co-parent will be forever gone. The child for the rest of his or life will be caught in a tug of war by parents who may very well hate each other. Parents who put children in the position of having to choose between them not only damage and stress the children, their conduct affects who the children are, and their sense of security and self-acceptance. For those reasons, it is critically important to a child’s welfare that a parent seriously consider all of these factors when deciding whether it is truly in the child’s best interests to seek full custody.