Texas Child Protection Law Bench Book
2024 version: As effective October 1, 2024
A. Background
Domestic violence can co-occur with abuse and neglect in child welfare cases. The following information, tools, and resources are designed to support judges' understanding of the complexities of domestic violence and to support informed decision making when these dynamics impact a child welfare case. Additionally, judges are encouraged to contact their local Family Violence Center to access opportunities for education and training. To determine which Family Violence Center serves a particular county, see a list of Texas counties and their centers by using this statewide chart. To learn more about a specific program, see Texas Council on Family Violence's (TCFV) statewide directory. For more support or assistance in identifying a local program, please contact the TCFV website directly.
Domestic violence, also referred to as family violence, can be described as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.[257] Family violence is defined in Tex. Fam. Code § 71.004. In this chapter, these terms are used interchangeably. Domestic violence can be physical, sexual, emotional, economic, psychological, or technological actions or threats of actions or other patterns of coercive behavior that influence another person within an intimate partner relationship. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone. Physical aggression is not always a tactic that is utilized in domestic violence; however, if it is used, physical aggression may or may not show physical evidence of harm.
“Coercive control is a central dynamic in domestic violence situations, and it can take the form of tactics to isolate, degrade, exploit, and control [the victim] as well as to frighten them or hurt them physically” although it can also take the form of emotional and psychological intimidation without physical violence.[258] Other methods of coercive control can take the form of “depriving victims of their financial independence or material possessions and regulating their everyday behavior.”[259] The cumulative effect is a pattern that minimizes the victim's “autonomy, equality, liberty, social supports and dignity in ways that compromise the capacity for independent, self-interested decision-making vital to escape and effective resistance to abuse.”[260]
Domestic violence can include the domestic violence perpetrator (hereinafter referred to as perpetrator) taking away access to resources needed by the survivor parent and the children as well as removal of psychological or emotional support. In a child welfare case, coercive control can manifest as the perpetrator taking away access to resources and/or documents as a threat, consequence, or barrier for the survivor parent participating in the child welfare investigation process, signing a safety plan, or getting a protective order. This could also take the form of the perpetrator making threats about the children, employment, or basic needs. These actions by the perpetrator increase risk to the survivor parent and the children and can compromise the survivor parent's ability to protectively parent and in turn increase the negative impact that domestic violence has on the children. It is crucial to respond to domestic violence in a way that supports the protective capacities of the survivor parent and bolsters protective factors for the children, while simultaneously holding the perpetrator accountable for the impact that their behavior and parenting choices have on the family.
It is important to note that witnessing family violence, in and of itself, is not defined as child abuse under Texas law. However, co-occurrence of domestic violence and child neglect or abuse is common and domestic violence constitutes the single greatest precursor of child maltreatment fatalities.[261] In FY 2023, the Texas DFPS' Child Maltreatment Fatalities and Near Fatalities Annual Report[262] documented that out of the 164 child abuse and neglect related fatalities in Texas, the following circumstances were present:
• A documented history of domestic violence in was identified in 96 case reviews;
• 68 families had active domestic violence present in their home environment; and
• For the 50 child fatalities where the family had a history of domestic violence and reported active concerns for domestic violence, 60 percent of those fatalities were due to physical abuse.
A common response by perpetrators is an unwillingness to participate in the child welfare process, including choosing not to engage in conversations, meetings, and services. This can leave the survivor parent accountable for addressing all safety concerns on their own, even when they may not be the cause of all safety concerns. It is important to note that a survivor parent's decision to leave an abusive relationship may leave them without the financial resources to care for the child and might result in a loss of employment, housing, and childcare. Poverty has a compounding impact on survivor parents due to the isolation, coercion, and economic abuse they may experience. Instead, the survivor parent may stay in the relationship as a protective response, believing that the perpetrator will do more serious harm if the survivor parent tries to leave. Notably, women who leave their abusive partners have a 75% greater risk of being killed than those who stay and there is a 75% increase of violence upon separation for at least two years .[263]
Exposure to domestic violence can have long-lasting negative effects on children's physical and emotional well-being. Children who are removed from their home as a result of domestic violence may also then experience the trauma of being separated from the survivor parent. Also, the separation of the children from the survivor parent creates more opportunity for the perpetrator to use the children as a tool to manipulate the survivor parent. These threats can add to other sources of pressure to stay in a domestic violence situation, such as cultural practices or norms, religious pressures, and the desires of the children to return to their home.
The intersection of disproportionality, child welfare, and domestic violence is impacted by the criminal justice and mental health systems. The child welfare system sometimes relies on other systems to help assess parents' abilities to care for and protect their children. The criminal justice and mental health systems are two of these systems, and families of color may experience disproportionate and disparate impacts[264] or be fearful of the impact of using these systems to assess their protectiveness. Regarding the criminal justice system, families of color may be reluctant to seeking such relief as calling law enforcement, requesting a protective order, or testifying against the perpetrator. The mental health system is especially connected to survivor parents involved in the child welfare system as mental health professionals are often asked to assess the mental health of survivor parents. Trauma survivors (both child and adult) experience a wide range of issues related to trauma exposure and may at times experience co-occurring mental health issues stemming from their experiences, such as Post Traumatic Stress Disorder (PTSD). For a discussion of disproportionality, see the Disproportionality and Equity chapter of this Bench Book.