Dallas Divorce Lawyer Blog

Articles Posted in Child Protective Services

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time.  Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned.  The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child.  You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon.  What should you expect?

Less than One Year Requirements 

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow.  In fact, you must qualify within these statutory parameters to even file your case.  The most important and crucial requirement is the affidavit that must be attached to your petition.  In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.”  Frequently, we see the first requirement being the grounds on which someone files a modification.  Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child.  But, the key is that the allegations must be made in the affidavit.  Many people get hung up on this requirement and many times affidavits fall short on their face.

What’s in an Affidavit?

This issue was discussed recently in an appellate case from the 14th Court of Appeals in In the Interest of A.D.  There, mom appealed the trial court’s decision to allow dad to be primary in a case less than one year and said that his affidavit was not sufficient.  Mom had made several false sexual abuse allegations against dad regarding their daughter over the course of an entire year.  The trial court found that this behavior on mom’s part was physically and emotionally dangerous and detrimental to the child and therefore awarded primary to dad.  Mom requested a jury trial over the matter in which several experts and witnesses testified that mom had made severely poor decisions regarding the child and these sexual abuse allegations.  That is, even though every professional (including police, CPS, and doctors) ruled this out, she continued to pursue it.  The jury ruled that dad should continue to be primary and mom appealed arguing that the court’s decision was improper and that the dad’s affidavit was not sufficient.

However, the Court of Appeals disagreed and reiterated the standard from Texas Family Code Section 156.102(c) which states that “The Court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation in (b) are stated within the affidavit.”  Therefore, the Court must look to the affidavit on its face to determine if it can move forward with a hearing on modification.  This is why it is so important that your affidavit contain all of the allegations and facts that you believe would necessitate a modification and it would not hurt to include the “magic language” from subsection (b) either.  The Court of Appeals also clarified that the trial courts are to just look to the facts of the affidavit and if they were true, would that justify having a hearing.   Therefore, this is the key part that most people miss—the trial court should have a hearing if the affidavit alleges facts showing “the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development”.  Thus, you do not have to prove the allegations are true before a hearing is held—just have to prove that they are true at the hearing to bring about the change you are requesting.

For any additional information regarding modifications in less than one year, schedule a consultation with Guest & Gray today.  Our family law team is ready to help.

Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report.  But what about such duty to report of just an ordinary person?  That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency.  That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office.  The family code does not exclude anyone in the duty to report.  Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc.  Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it.   Unfortunately, many of the cases we see are children being sexually or physically abused.  Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Sec. 261.101.  PERSONS REQUIRED TO REPORT; TIME TO REPORT.  (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

(d)  Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

(1)  as provided by Section 261.201;  or

(2)  to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Many people fail to report child abuse or neglect because they are afraid of the backlash that they may receive.  In fact, some people talk themselves out of it saying that they cannot be certain about it and they worry about what if they are wrong, what will happen to them.  The definition is clear—“cause to believe”.  Did the child show up at school with bruises on their backside or on their face?  The important thing to know is that you cannot get in trouble if you have a reason to believe that the abuse is taking place.  In fact, Texas Family Code Section 261.106 makes that abundantly clear.

Sec. 261.106.  IMMUNITIES.  (a)  A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(b)  Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

(c)  A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

The worse thing to worry about is what would happen to you if you did not report and someone found out.  We see this arise a lot when it comes to grandparents or even parents.  A court case will begin on instances of abuse; however, the person claiming the abuse failed to make a report to the appropriate agency.  It is a crime, one which can be pursued against you.

Sec. 261.109.  FAILURE TO REPORT; PENALTY.  (a)  A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

The issue arises when people start making reports to spite one another.  For instance, we have had several instances of divorces where parents make sexual abuse claims against the other parent involving one or all of the children part of the divorce.  This happens because both parents might be competing for the exclusive right to designate primary residence.  However, many people do not realize that this is in fact a crime.

Sec. 261.107.  FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY.  (a)  A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false.  An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.

(b)  A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

(c)  The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

(d)  The court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report.

(e)  A person who engages in conduct described by Subsection (a) is liable to the state for a civil penalty of $1,000.  The attorney general shall bring an action to recover a civil penalty authorized by this subsection.

If you have any knowledge of child abuse or neglect, report it today.  Do not wait until you have hard proof, all you need is “cause to believe.”  You may be saving a child’s life.  For your convenience, you can contact the Texas Department of Family and Protective Service’s child abuse hotline at 1-800-252-5400.  If your case involves a situation in which you believe you would want to seek custody of this child, contact us today at Guest & Gray to schedule a consultation regarding your family law case.  Understand, however, that if you have not reported the child abuse then even our attorneys have the duty to report the said abuse.  It is never too late to make the right decision.  We look forward to helping you.

In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending.  You will still need to submit an affidavit and a request for a restraining order.  However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially.  The hearing will still be held 14 days from the date the judge signed the order.

There are many scenarios where restraining orders are appropriate measures to ensure that the children and/or your property are protected while the case is pending or while you await a hearing. Call Guest & Gray to schedule your family law consult and discuss your case is more depth. We look forward to assisting you.

New 2013 Texas Family Laws

 At Guest and Gray our Forney and Rockwall Family team works to keep our clients informed on changes in the Family Code. Recently, the legislature passed many new laws that affects Texas families. Our family attorney can help you understand how these laws will affect your case, and we offer confidential consultation for all family law cases. Call us today so we can help you.

Miscellaneous Changes

There were numerous small vocabulary changes and minor amendments to the Family Code.  And although it is not a legislative change, the Office of the Attorney General increased the “cap” on net resources used for the calculation of child support.  The “cap” is the amount of monthly income on which a parent must pay child support.  It increased from $7,500 to $8,550 on Sept. 1, 2013.

Title 1: The Marriage Relationship

Title 1 of the Texas Family Code applies to the marriage relationship.  There was only one new amendment, House Bill 389, which provides for the uniform enforcement of alimony and certain property division agreements, even when the agreement was made in a separate document from the divorce decree.  Also, the bill amends the Texas Family Code to establish a maximum amount of agreed spousal maintenance that the court may enforce by contempt.  The limit is the “amount of periodic support the court could have ordered,” which may not be as much as was agreed upon by the parties.

Title 4: Protective Orders and Family Violence

Prior to Senate Bill 129, the place required for filing an application for a protective order against family violence was the county of residence of the victim or the county of residence of the alleged offender.  Now, the order can be filed in “any county in which the family violence is alleged to have occurred.”  Senate Bill 555 expanded the reach of protective orders to apply to pets, companion animals, or assistance animals in the “actual or constructive care” of a person protected by an order.

Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship

 House Bill 154 increased the time limit for filing a termination of parent-child relationship suit in a mistaken paternity case.  A petitioner now has 2 years to file such a suit from the date of discovery of information suggesting that the petitioner is not the child’s father.  It also stops interest from accruing on existing unpaid child support or money judgments after the date a termination order is entered.

House Bill 843 entitles certain people, including children 10 years or older, to at least 10 days’ notice of a permanency hearing and gives these people the right to present evidence and be heard at the hearing.

Standard possession orders were modified slightly by House Bill 845.  The bill repeals Section 153.3162, which allowed additional periods of possession or access to a child after the end of military deployment based on the amount of possession or access missed during deployment.  House Bill 845 also expands the definition of written notice to include notice provided by e-mail or fax and allows for greater options for the beginning and ending times of certain periods of possession or access.

House Bill 847 removes the “get out of jail free” card of a last-minute payment , which enabled people who were sued for unpaid child support to avoid being subject to penalties as long as they paid.  This bill allows a court to award a petitioner court costs or reasonable attorneys’ fees even if there is no finding of contempt, a punishment which encourages parties to not delay payment of support.

Under House Bill 1185, Suit Affecting the Parent-Child Relationship records no longer have to be destroyed on termination of appointment of a child’s court-appointed representatives.  This enables the records to be preserved in case the child returns to the court system later on and will speed to process for returning children.

House Bill 1205 clarifies the law about when a professional who is required to make a report about child abuse or neglect knowingly fails to do so.  For a knowing failure, the professional faces a Class A misdemeanor.  For intentional concealment, the professional faces a state jail felony.

House Bill 1228 orders the court, except in certain cases, to terminate a parent-child relationship if it is found by clear and convincing evidence that the father has engaged in conduct that constitutes certain sexual or assaultive offenses; as a direct result of the offenses, the victim of the conduct became pregnant with the parent’s child; and termination is in the best interest of the child.  This bill was introduced because a man who fathers a child through sexual assault has the same custody and visitation privileges to that child as any other father, unless a statute exists which allows a court to reduce or terminate those rights.

House Bill 1366 clarifies that trial courts have the power to award reasonable attorney’s fees in a divorce suit, a power that was recently questioned.  The bill also reduces the time to request a de novo hearing under Chapter 201 to not later than the third working day, rather than the seventh, after the date the party receives notice of the substance of the associate judge’s report.  The bill also adds language to stop interlocutory appeals in a suit brought under the Texas Family Code.

House Bill 846 affects the suspension or denial of issuance or renewal of driver’s license for failure to pay child support.  The attorney general or a court can pause or completely stop a suspension if the individual complies with a child support repayment schedule.  Additionally, the bill stops a licensing authority from accepting an application for a license or license renewal unless the person owing child support has made the required payment (not less than $200) and is following the remainder of the payment schedule.

House Bill 3017 amends Chapter 154 of the Texas Family Code.  Currently, the application of child support guidelines includes a disabled veteran’s compensation and pension as a net resource used to calculate child support.  But the code is silent as to how to appropriately calculate and allocate a disabled veteran’s compensation and pension benefits.  The bill adds VA disability benefits “other than non-service-connected disability pension benefits” to the definition of “resources” and clarifies the treatment of disability payments from the VA in determining child support.

Senate Bill 534 requires the Department of Family and Protective Services to hold a permanency planning meeting for each child for whom DFPS is appointed temporary managing conservator.  The bill requires meetings to be held between 45 days and 5 months after the date DFPS is named temporary managing conservator of the child.


If there is an allegation that either you or the other parent is abusing an illegal controlled substance, then a drug test can be requested. Typically, the testing will occur with Forensic DNA & Drug Testing facility in Dallas and if requested by either party, then the court will order both parties to participate and pay for their respective drug tests. However, sometimes, the court will only order the one party accused of using an illegal substance to take the drug test and order that the requesting party pay for the drug test with the caveat that if the testing party has a positive result, then they must reimburse the requesting party the drug testing fee.

If you fail a drug test, or if the other party fails a drug test, there are consequences in a child custody case. The court could order that the failing party have little to no visitation with the child and if any visitation, then it will be supervised. Sometimes, the judges will ask if there is a family member who could do the supervision of the visits with the child. If there are not, then the extreme form of supervised visits is either Family Court Services if in Dallas County or other court-approved supervision facility. Also, if there is a history of abuse of an illegal controlled substance, then the court could order that you participate in a rehabilitation program before the failing party has any access to the child. In fact, there could be several steps that the court puts in place for the failing party to complete before they have any visitation with the child. Again, most courts will order supervised visitation with the child but it could be very limited to a number of hours per month.

Courts have also started putting injunctions in place to the effect that a party is to not consume an illegal controlled substance within a certain period of time (example 72 hours) before possession or access to the child begins. This is also something that can be requested by either party. Additionally, in final orders, it can be ordered that you submit to random drug testing at any time in the future if requested by the other party and they pay the testing fee.

In short, the drug usage is normally a huge factor in child custody cases. If you are found failing a drug test, you might lose all access to your child. It is simply not worth that. Because then, you must spend a large portion if not the rest of the case proving to the court that you are clean, sober, and capable of being a responsible parent. Contact your attorney at Guest &Gray, P.C. today to discuss this issue further and your options as a parent.

Imagine this scenario: you are at work or at home waiting on your child to get home from school, and someone contacts you and identifies themselves as a CPS social worker and they want to speak with you regarding your child and some recent allegations. You are confused and concerned. Unfortunately, many parents face this every day.

In fact, Child Protective Services (CPS) has two different avenues of becoming involved when there are allegations of child abuse (typically classified as sexual, emotional, or physical), neglect (defined as lack of supervision, lack of medical or emotional care, etc), or if CPS suspects that there is alcohol or drug abuse occurring within your home. The two different avenues of involvement are as follows:


(1) You receive notice from CPS that there is an allegation of child abuse within your home. The CPS worker who has been assigned to your case will contact you and will begin the investigation. The CPS worker can even go around you and first visit your children at school or daycare and can discuss the allegations with them and determine if there are any real and apparent issues that are consistent with the initial report. Then, the CPS worker can choose to come to your home and interview you there. The CPS investigator is looking for evidence of abuse or neglect or for evidence that abuse or neglect may occur within the foreseeable future. More specifically, the caseworker is looking for an immediate risk of serious harm.

At the close of its initial investigation, which must be conducted within 30 days of the report, a conclusion will be made by the CPS worker whether the allegations are true. If at the conclusion of the initial investigation the allegations are deemed as being true, then CPS can seek to remove your child or they can seek to make further plans for your family to ensure that the children are protected. This might entail what CPS terms as the Safety & Evaluation Plan and can include such recommendations like parents will attend counseling, the CPS worker will make random home visits, the children are not to be around a certain person, etc. This may not result in a court case at all.

Also, it’s important to note that you may become involved in a custody dispute after the CPS investigation is initiated. Maybe the other parent is seeking to modify the custody orders that were initially rendered by the Court, and CPS’ involvement now plays a huge role. Your attorney at Guest & Gray, P.C. will be able to discuss this with you and let you know what to expect.


(2) CPS decides to take administrative action when it receives a report of alleged child abuse or neglect and removes the child from the home or places limitations on your visitation during the pendency of the investigation.

At this point, you have a very short time frame between having your child or children removed from your home and from when you will be in front of the judge. Once your child is removed, you will receive a written report and petition from CPS. The petition will name CPS as the petitioner and you as the respondent and will list out the allegations of why you shouldn’t have custody of your child. You will need to be sure of when your court date is, because as mentioned, it will come up quickly.

Potentially, there are 8 hearings that are involved in these cases which are: emergency hearing, adversarial hearing, initial permanency planning team meeting, status hearing, initial permanency hearing, additional permanency planning team meetings, permanency hearing, and final hearing.

First, the emergency hearing is held within 1 business day of CPS’ filing of its petition and it can be ex parte, which means that the Court can hold this hearing without you. At this hearing, CPS’ attorney has the opportunity to present the allegations and issues to the judge and the judge will determine whether or not to keep the children in CPS’ care until the adversarial hearing.

Second, the adversarial hearing is held no later than the 14th day after the child or children are removed from your home. At this hearing, the Court will determine whether the removal of your child was proper. If the Court concludes that the removal was proper, the Court will also put temporary orders into place while the case is pending to ensure the safety of the child. At this point, your child could remain in CPS’ care, or the child can be placed with a family member, friend, or other person whom the Court finds suitable. This hearing is incredibly important for you as the parent or guardian of the child because, first of all, you’re there. So, the Court gives you the opportunity (and most importantly, your attorney) to explain the situation from your perspective. In particular, you will no longer having the Court solely consider CPS’ perspective at this point, because up until now, this is the Court’s only source of information. This is your child, so come prepared for the judge to know the real circumstances.

Third, if your case gets this far, you’ll have the permanency planning team meetings which are initially held within 30 to 45 days from the removal of your child from your home. It’s important to note that while this isn’t an actual court hearing, this is a crucial step in your case as all of the parties will be present. In fact, you should bring all of your supportive family members who are also concerned for your child’s safety. Here, what CPS terms as the “service plan” will be established which is what everyone can agree on as best for the child.

Fourth, after the service plan is established, a status hearing is held. Time frame for this is at least within 60 days of the child being placed in CPS’ care temporarily. At this hearing, the Court discusses the service plan with you and makes sure you understand what it is and what you must do to comply.

The next and fifth step is the permanency hearing. Unfortunately, there may be multiple, but we know that there’s at least one in the CPS process. There, the Court will go over the service plan and it will have been a while so the Court will be able to determine who is complying and who isn’t and determine whether any changes need to be made to the Plan. Also, the Court could determine at this time that your child would be returned to you until final hearing or continue with either CPS having the child or another guardian. Here, the final hearing date will be announced by the judge. As stated, if the Court determines that other permanency hearings are necessary, then those dates will be announced as well.

Lastly, you will have the final hearing or trial. Here, all the parties are allowed to present testimony and evidence that go to your child’s best interest. After this is presented, the Court will make a determination on who will have custody of your child or, how the Court terms it, who will be conservator of your child. The conservator may be you, a person who’s been named guardian of your child during the pendency of the case, or it could be CPS.

Regardless of how CPS becomes involved in your family, it is essential that you contact your attorney at Guest & Gray to ensure that your parental rights are protected. In fact, the quicker that you act, the more you ensure that your rights are protected and you ensure that your attorney is there to guide you through the process. That is, a CPS case can be quite difficult and there are several issues that may arise during its pendency. It can be a convoluted process that people frequently become discouraged over. As you’ve seen through this brief summary of the steps, it can be turn into a long, drawn out process. However, your attorney may be able to stop the process at a particular point in proving that the allegations are false or that removal of your child was unnecessary. The key is to be informed and contact your attorney at any indication that CPS is investigating your family.