In Texas divorces, courts prefer both parents to share the decision-making authority for their children even when those children reside with just one parent. When the court deems it to be in the best interests of the child, however, it will award sole physical custody and decision-making authority to one parent. And one of the reasons courts may reach that decision is when a parent is considered inappropriate for custody — namely, that awarding custody to that parent would significantly impair the child’s physical health or emotional development.

That determination is based on analysis of mandatory and optional factors set by law. Texas judges must consider evidence of:

• A history of family violence
• A history or pattern of child neglect or physical or sexual abuse against the other parent, a spouse or a child
• Intentional use of abusive physical force against the other parent or any child under 18 during the suit or two years before parties filed for divorce

Optional factors that a judge may consider include each parent’s present ability to care for the child, recent criminal activity, drug or alcohol problems and inappropriate sexual conduct.

Evidence of parental inappropriate behavior needs to rise to a certain level. A parent’s struggles with depression or other mental illness, for example, are not automatically considered as such. But they could be if the parent is unable to care for or is a danger to the child or if the mental condition is severe or permanent. The law deliberately puts the threshold high so that one-time mistakes or character flaws may be forgiven. Furthermore, a finding of parental inappropriate behavior doesn’t necessarily result in termination of a parent’s rights to see and care for their children.

If you have serious concerns about the appropriateness of the behavior your child’s other parent or have concern for your child’s safety in a custody dispute, we can help. Our firm can advise on collecting evidence of abuse or neglect, such as photos, medical reports, recordings and police reports, and how to proceed with your case.

If you are contemplating divorce or are facing a contested child custody matter, call Robert Reid McInvale at 866-959-7824 or contact us online to make an appointment at our Houston offices.