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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 27198
Experience:  Attorney with experience in family law.
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I will start this out by saying that I live in Texas. My

Customer Question

I will start this out by saying that I live in Texas. My children are currently at my ex's home, he has an open CPS case against him for abusing my 11 year old daughter. They have gotten into several altercations since she has been at his house for the summer. The worker called me and was really ugly basically accusing my daughter of being at fault for the abuse. My ex has installed camera's in his home and only showed them footage of my daughter attacking him, and nothing before of what he did to provoke her to attack him. (He was spraying her with a water hose after having verbally abused her and purposely making her angry.)They also prevented the other children from helping her, and threatened them in order to keep them from going and seeing what was happening. CPS didn't demand that he show the rest of the footage, they took his word for everything that happened prior to her attacking him. They believe his narrative of her just being an out of control pre-teen with emotional problems. The case worker told me all of this over the phone. They put a safety a plan in place where if anything else happens the children are supposed to be able to call 911, but he won't let them have access to a phone. He won't allow them to contact anybody in our family, and has told their grandmother that they are grounded from the phone and ignored my text messages to the children to call me for days now. (This is the phone that is supposed to be for their use so they aren't using his or his wife's phones.) Speaking to him is out of the question, his only form of communicating with me is screaming over me and belittling me and cussing me out. Fast forward to today, I talk to my oldest daughter who lives with him and she tells me that he is pressing charges on me for calling CPS and that I am going to jail soon. He has told her and all of the children this making them believe that they are not coming home and that I am in jeopardy of going to jail. I know this is complicated issue, but I'm not sure how to proceed from here. I can't afford an attorney, I know I need one, but what can I do in the meantime?
Submitted: 2 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 2 months ago.


I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear that this happened.

First, you can rest assured that police are not likely to show up at your house and take you to jail. Filing a false report with CPS is a state jail felony, however it's the type of thing where they will typically send you a notice in the mail with a court date, asking you to appear voluntarily. They do not make you wait in jail for that appearance, unless maybe you had a history of filing false reports. Now, just the fact that a report turns out not to be substantiated when CPS arrives doesn't mean it was a false report. They have to prove that you knowingly made up false charges, and since you were relying on what your children were telling you, I don't know that they'll be able to do this. See Tex Fam. Code, Section 261.107. You'll be able to call the children to testify as to what it's like living with their father. Also, just because he calls and files a report doesn't mean the DA will press charges. Many cases referred to the DA do not result in any sort of criminal proceeding. I know it's tough, but try not to worry about it unless you hear from police.

Second, if police contact you, you have NO OBLIGATION WHATSOEVER to talk to them. You can refuse. They cannot hold your refusal against you, because it's an absolute right. And if you choose to talk to them, you can insist that a lawyer be present to protect your best interests.

Third, you have a constitutional right to be represented by an attorney any time it's possible that you'll be denied of liberty. That means, when you go to the court appearance, you can ask the judge to appoint a lawyer for you at no charge. Your lawyer will enter a plea of not guilty on your behalf and request bail. Then you go prepare your defense and go back to court for a trial. If you don't have a criminal record, jail is pretty unlikely for this type of offense. More likely, you'd serve a term of probation, pay a fine, and maybe do some community service.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

Customer: replied 2 months ago.
Okay, I appreciate your answer and I have a few follow up questions:What can I do about him not allowing my children to contact me? I know there is a safety plan in place through CPS, and the children are supposed to be able to call 911 if any further altercations occur, but he has banned them from any form of electronic communication just so they can't contact me.Second I feel that CPS is not doing their due diligence and reviewing all of the relevant information that is available to them. There is video footage of what happened prior to my daughter lashing out at him, why are they taking his word for it when they can watch for themselves? Is there any recourse I have if I believe they are not protecting my children? Maybe a phone number or a place I could lodge a complaint?Thank you, ***** ***** this is sort of a complicated issue, and I appreciate your time.
Expert:  Lucy, Esq. replied 2 months ago.

If there's a court order that grants you contact with the children, he's in violation of that order and you can take him back to court for contempt. If there isn't one, you can file a Motion for Modification. As part of the modification, you're allowed to explain all the reasons it's best for the children to not be with their father anymore. The fact that CPS didn't find abuse isn't binding on the judge, because there are plenty of non-abusive behaviors that still reflect on a person's ability to parent. Him not letting them talk to you is part of that. The judge will look at the total picture.

You can also try talking to a superior at CPS if you have concerns about how the investigation was handled.

Customer: replied 2 months ago.
I am a little confused, if there is a safety plan in place, and they are being made to work services doesn't that mean that the allegations where founded?
Expert:  Lucy, Esq. replied 2 months ago.

They're keeping an eye on the situation. I just meant, the judge doesn't have to leave the children where they are because CPS chose not to remove them.

Expert:  Lucy, Esq. replied 2 months ago.

Did you have any other questions about this?

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