When you Have Both Family Law and a CPS Case

Imagine a woman having two vodka tonics every night, and almost every night she and her husband get into an argument. She likes to throw her vodka tonic in his face (just the liquid, and not the glass).

Just last night, the wife had two vodka tonics, as usual.  She and her husband were arguing, as usual. As she holds her drink, the husband slaps it out of her hand, and his hand makes contact with hers in the process. The drink falls to the ground, and the glass shatters.

During the fight, the couple’s toddler had crawled into the kitchen, but neither parent saw the child come into the kitchen. However, the broken glass hits the child and cuts her.

These types of incidents happen all too frequently, and can be complicated from a legal perspective due to the involvement of both spouses and children. They can involve multiple court cases, legal proceedings, and government entities. Without an experienced Family Law Attorney on your side, you can be on the losing end of all of them.

Learn more about the proceedings in a scenario like this and how a good lawyer can help you avoid the legal pitfalls.

How many different types of lawsuits might occur now?

A criminal law case might manifest as assault charges against the husband or the wife (or both). These charges could be a family violence misdemeanor for an assault against the other spouse, and maybe also a felony for injury to the couple’s child.  A civil lawsuit might also be filed for monetary damages, in the case of personal injury (the injured spouse or child), or for property damage (the broken glass).

There are actually just two types we care about: a family law case between the parents, and a CPS case against the Government.

In a family law case, the court makes orders concerning children and property. This includes child custody and visitation, child support, parental rights and duties, and parental decision making (health, education, etc.). In some situations, this is a divorce case between parents, in which the children are involved. Or, it might be a lawsuit that effects the parent-child relationship (SAPCR), in which the parents may or may not have ever been married. Finally, it could be a lawsuit to modify the parent-child relationship (SAPCR Mod), in which a prior divorce decree or other family law order is modified or changed in some way.

Child Protective Services (CPS) operates under the umbrella of the Texas Department of Family and Protective Services (DFPS). CPS cases begin because of a report of child abuse or neglect to State authorities. In each case, there are two parties: DFPS, who files a lawsuit due to the report of abuse or neglect. And, the child’s caregiver (usually a parent), who must answer the State’s lawsuit. DFPS obtains legal counsel through the District Attorney’s office in larger Texas Counties, such as Travis County. The child’s caregiver (again, usually a parent) is represented by a privately-retained attorney or a court-appointed lawyer if the parent cannot afford a private one.

Sometimes, there can be parallel CPS and family law cases.

In this situation, family law cases and CPS cases can occur simultaneously, even sometimes in different counties. Divorce jurisdiction can occur in whichever county either party has resided for the last 90 days. CPS jurisdiction must occur in the county where the child resides.

For example, our hypothetical family might have resided in Travis County. However, after the vodka tonic incident, the husband moves out of the family home and gets an apartment in Williamson County. He then sues for divorce in Williamson County after living there for ninety days. CPS also opens a case, but in Travis County because the child still lives there in the family home.

In cases like these, an experienced family law and CPS attorney can help you navigate the many pitfalls of dual family law and CPS cases.

How can a CPS case affect a family law case, as it relates to the child?

There are many child-related issues that could occur because of CPS litigation, and any of these have the potential to adversely affect a family law case, especially a divorce.

If CPS is investigating one spouse (the “offending parent”), but not the other spouse (the “non-offending parent”), then a Court is more likely to award the non-offending parent with conservatorship, possession, and the right to make decisions concerning the child, such as medical and educational decisions. In legal terms, conservatorship is equated to custody, which is a legal relationship with the child. Possession is equated to visitation, or a legal right to possession of the child.

For example, a “non-offending” parent is more likely to be awarded sole managing conservatorship (SMC) or joint managing conservatorship (JMC). As a general rule, the parent awarded sole managing conservatorship (SMC) has the right to make all child-related decisions, that parent’s house is the child’s primary residence, and the other parent (the “offending parent”) may or may not have periods of visitation with the children. If a parent is awarded JMC, the child is most likely to reside with the non-offending parent, but both parents could share parenting time (visitation) as well as the power to make decisions concerning the child.

However, the “offending parent” is more likely to be given very limited possession rights. This may mean that they are only allowed supervised visits. Or, they may not have any possession or visitation rights at all.

Child support issues can also get messy in these situations. The offending parent is more likely to have to pay child support—even if they have no periods of possession or visitation with the children—because there is no link between possession and child support under Texas law. In other words, that parent has to pay out whether they get to see the child or not.

How can a CPS case affect property division in a divorce?

Depending on how the CPS case goes, the “offending parent” is more likely to pay post-divorce spousal maintenance (like alimony). There are several situations in which the spouse seeking support would be entitled to it. They might not have enough property after the divorce to provide for their basic needs, and those of the child. Or, the offending spouse might have been convicted of violence toward the other spouse or the child during their marriage.

One spouse might also be awarded a disproportionate share of the property, which means more than fifty percent of the community estate. We must remember that there’s a difference between separate property and community property. Community property is everything acquired during the marriage, except separate property. Community property gets divided in a divorce. Separate property is defined as one of four things: something brought into the marriage, a gift given exclusively to one spouse, an inheritance left exclusively to one spouse, or personal injury damages. None of these are divided in a Texas divorce.

The presumption is that the “just and right division” of property in a divorce is fifty percent to one spouse and fifty percent to the other. Grounds for awarding more than fifty percent to one spouse (Murff vs. Murff) include fault of the other in the divorce, or the same grounds as those in the CPS case (cruel treatment).

Our goal is dual CPS and family law cases that proceed in a timely and effective manner.

If CPS believes that you are the offending parent, then an experienced CPS and family law attorney can help you to get CPS out of your life as quickly as possible. In many instances, the non-offending parent uses the CPS case to create evidence for a family law or divorce case.

If CPS believes that you are the non-offending parent, you may also need to cut ties with CPS as quickly as possible, because you’re just playing with fire. You have the potential to lose control from the litigation perspective, as well as lose control over your child’s future (by giving into the government, through CPS). You can also very easily have the tables turned on you and become the offending spouse.

There are a plenty of different ways that family law and CPS cases can interact with each other, potentially causing child-related or property division problems. Thompson Law strives for parallel CPS and family law cases in which cases are finalized in our client’s favor before things get out of hand.