Can a Mother in Texas Leave With Her Kids if in Danger Before Filing for Divorce?

by Marcy Brinkley
Parents are required by Texas law to protect their children.

Parents are required by Texas law to protect their children.

Marili Forastieri/Digital Vision/Getty Images

Safety is the first concern in a family violence situation. In an emergency, call 911 for police assistance and leave the premises if possible. If there is no immediate danger, the Texas Attorney General recommends making a safety plan to assist you in leaving the home with your children. Obtaining a protective order can define your rights and order the abuser to stop committing acts of family violence.

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Family Violence

The Texas Family Code defines family violence as an act or threat of harm by a family or household member against another member of the family or household, including children. An act of family violence may include causing or intending to cause physical harm, bodily injury, assault, or sexual assault. These acts might include hitting, biting, throwing an object at the other person, sexually assaulting her or other acts that cause or intend to cause physical harm or pain. Threatening to cause physical harm or pain may also constitute family violence.

Legal Issues

Removing the children from the home to keep them safe from the other parent is unlikely to have negative consequences for the mother if no divorce suit has been filed. Although Texas law grants both parents the right to live with or visit with the children, the same section of the Texas Family Code requires parents to protect their children from harm. The situation becomes more complex when either party files for divorce because Texas criminal law may consider a removal of children from the geographic area at that point to be an interference with custody, a felony offense.

Safety Planning

In a situation that involves potential violence but no immediate danger, the Texas Attorney General's website recommends developing a safety plan to follow if violence erupts. Each situation is different but you may consider identifying a safe place to go after leaving the home, identifying ways to exit the home from any room, packing important documents, cash and belongings, and teaching your children a code word that prompts them to exit the home before you if necessary. Make arrangements for the care of pets and carry the phone number of your local battered women's shelter with you at all times.

Protective Order

Instead of leaving, you may consider requesting a judge issue a protective order that includes an order for your husband to move out of the home, pay child support, stay away from you, turn in his firearms to the local police, and stop committing acts of family violence. All counties in Texas provide assistance in filing a request for a protective order through one or more agencies. There is no cost to filing the request.