Family Law

Abusing Parental Discretion and Sensitive Subjects

Most parents drag their feet to have "The Talk" with their children about the birds and the bees. Some leave books and pamphlets around the house. Some assume the school's sex education movie is enough.

Others leave it to chance and figure that between TV, movies and friends, the kids will figure it out. One Texas man claims his talk was educational, but his ex and the District Attorney calls it child endangerment.

The Texas Case

A recent NPR story described one upset mother's discovery that her ex-husband had shown their three young daughters online pornography. One daughter told her counselor this "education," as her father described it, included a live webcam of a female who did what the man typed for her to do.

The counselor told the mother about what the child revealed, and then she called Child Protective Services. The Randall County Texas District Attorney became involved. Texas law forbids selling or showing "harmful material" to a minor, except with a consenting parent or guardian.

The District Attorney, aware of that exception, knew that he couldn't win on that charge. He charged the father with child endangerment. The DA must prove to the jury that the father put his daughters "in imminent danger of mental impairment" by his actions.

Mandated Reporters Include Counselor and Teachers

The three daughters had kept their father's actions a secret for months. Their mother had brought the eight-year-old girl to counseling because she was having behavior problems with acting out and anger. It was only in a counseling session the young girl told what had happened.

The counselor's call to Child Protective Services was part of her obligation under Texas law because she is a mandated reporter. Most states have laws which require people in certain trusted professions to report suspected child abuse or neglect. These include doctors, nurses, counselors and teachers.

This can be a judgment call if it isn't clear the child is being harmed or faces imminent harm . To be on the safe side, the counselor, teacher or other professional usually wants to be cautious and report it. Child Protective Services investigates to see if court action, criminal charges or other intervention is needed.

Impact on Child Custody and Visitation

The mother of the Texas girls is in family court asking the judge to change the child custody agreement because of the pornography incident. The three girls were living with their father and his new wife, who claims that the incident was a one-time occurrence.

Changing an earlier custody or visitation agreement isn't always easy. You have to persuade the judge there's been a "significant change in circumstances." This can include situations where the parent's lifestyle, habits or living arrangements adversely affect the child.

The judge considers several factors, including the wishes of the child, depending on their age. Inappropriate activity in the presence of the children, including criminal activity or drug or alcohol abuse, can all be possible reasons for changing custody or visitation.

Often a guardian ad litem, child advocate or child representative can be appointed in a custody case, or a case where a parent is charged with abuse or neglect. They are an objective, third-party observer trained to address issues involving children. Their job is to make recommendations as to the best interests of the child.

Questions for Your Attorney

  • What age is too young to talk to my children about sex?
  • Can I get in trouble for teaching my children about sex?
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