Yes. A closed CPS case can be used against you in family court, at least in many cases. These reports are part of the dreaded permanent record.1
Furthermore, in most states, CPS records are business records and therefore not subject to the hearsay rule (a rule that excludes all out-of-court oral, written, or other statements). However, closed CPS records are only admissible as evidence in a case if they’re relevant. More on that below.
If a parent in a custody case has a possibly relevant closed CPS case hanging in the closet, most lawyers pull the pin on the grenade. The parent then freely admits the matter and then tells a tale of redemption.
For example, if Steven has an alcohol-related CPS case on his record, alcohol monitoring test records can establish that he’s now clean and sober.
Expungement or sealing is a possibility as well. Most states have some procedures in place in this area. More on that below as well.
How long does a closed CPS case stay on your record?
How long a closed Child Protective Services (CPS) case remains on your record depends on the state and the specifics of the case.
- In Texas, for example – where I practiced – the Department of Family and Protective Services (DFPS) retains CPS records for a minimum of five years after the case is closed.2 However, cases involving serious abuse or neglect may be kept longer, potentially until the youngest child involved turns 18 or even indefinitely in severe cases.
- In other states, retention periods can differ. For instance, some states may keep substantiated CPS records until the child involved reaches adulthood, while unsubstantiated cases might be eligible for earlier expungement or sealing.
It’s important to note that even if a case is closed, the record may still be accessible to certain agencies or during background checks, especially if it was substantiated. To remove or limit access to these records, individuals may need to pursue expungement or sealing (more on that below).
A closed CPS case can be used against you if…
1. The case was closed recently
Abuse or neglect investigations closed within the past three years are usually relevant, especially if a spouse or child named in the current suit was a victim or witness. At best, these individuals usually receive limited or supervised visitation.
Usually, the best approach in these cases is to take it on the chin during the initial proceeding. Then, the party files a motion to modify, usually a year later.
In modification proceedings, only events that transpired after the previous order are admissible. So, that old CPS case is irrelevant and inadmissible.
2. The case was closed recently, and relates to recent events
If no one currently before the court was involved in the prior CPS case, it’s presumptively irrelevant. But recent events overcome this presumption.
That’s especially true if a lawyer connects the closed CPS case with the current environment. For example: If Michael has a verified drinking problem, perhaps because he’s been to rehab or has a DUI, a prior recent closed CPS case that involves alcohol-related abuse or neglect is most likely relevant.
By the way, I don’t mean to speak in absolutes in this post. Laws vary significantly in different states. Furthermore, most of these relevancy rules are informal and subject to change at any time. However, if you’re wondering if a closed CPS case can be used against you, this article offers important guidelines.
3. It reflects a pattern of behavior
Now, we’re getting to the bottom of the barrel, in terms of relevancy.
If the CPS case was closed more than three years ago, a lawyer could make the “a leopard doesn’t change its spots” argument and claim the prior case, along with other evidence, establishes a pattern of misconduct.
However, this argument usually falls on deaf ears. This argument is also highly vulnerable to the redemption defense mentioned above.
4. It’s brought up during cross-examination
Even if a closed CPS case is clearly irrelevant, the target isn’t necessarily out of the woods yet. The closed case could still come up during cross-examination of a character or other witness.
Let’s say a lawyer asks the witness – who just gave the person in question a five-star rating – something like, “Did you know that Renee was the subject of a CPS investigation in 2020?”
Now, the lawyer in this example isn’t formerly introducing the CPS report into evidence, or even saying that such an investigation occurred. The question is, do you know about it, and the answer is yes or no.
If the witness is stupid enough to indignantly say “That’s not true,” the lawyer can then admit the report into evidence for impeachment purposes. Technically, the court cannot consider it to be substantive evidence – but at that point, the cat is out of the bag.
Why are some CPS cases closed?
Some CPS investigators close cases because they conclude the allegations of abuse or neglect were baseless. These records are usually irrelevant, even if they meet one of the relevance tests discussed below.
Other CPS investigators close cases for workflow reasons. If the office is understaffed, the allegations are not serious (e.g. Junior came to school in dirty clothes), and the allegations would be difficult to verify, CPS investigators may file a discretionary dismissal.
Or, in plain English: The office decided not to pursue the complaint. That’s not the same thing as a finding that the allegations were baseless. Discretionary dismissal cases may be relevant.
Most CPS investigators close cases because the caregiver completes parenting classes and jumps through other hoops. These closed CPS cases are almost always relevant. If the target didn’t complete the program requirements, CPS probably would have re-opened the case.
CPS case closure processes
We discussed the voluntary CPS case closure process, which once again varies in different jurisdictions, above. A few case closures are involuntary. We’ll discuss those now.
Most CPS offices are large bureaucracies. The office’s head investigator could order a subordinate to abandon a case, or the organization’s head could issue a similar order.
More frequently, a lawyer obtains a restraining order that closes a CPS investigation. Judges usually grant such applications if the petitioners would suffer undue harm for which there is no other adequate remedy at law.
The closed CPS case might or might not be relevant to a divorce or child custody case, as outlined above
Expunging or sealing CPS records
A few final words about expunging or sealing CPS records.
Usually, expungement is like a delete key, and sealing is like Wite-Out (if you don’t know what that is, ask your parents). With expungement, the record is wiped clean, as if it never existed. Sealing, on the other hand, is more like putting a layer of Wite-Out over the record – it’s still there, but hidden from public view and only accessible in limited circumstances.
In most civil court proceedings, like custody disputes, expunged or sealed CPS records are generally considered irrelevant and cannot be used as evidence.
The rules around this differ from state to state, but here’s a general idea based on how it works in Texas, where I practiced law: If a CPS case was closed for cause (meaning CPS found no wrongdoing or the parent completed all required steps), it’s often eligible for sealing. That’s different from a discretionary closure, where the case was dropped for reasons like lack of resources or low-level concerns – those are less likely to qualify.
Texas also has a program called the Fresh Start Program, which is mainly used to clear up criminal records. In some situations, it can apply to CPS records too, giving individuals another chance to clean the slate.3
The bottom line: Can a closed CPS case be used against you?
While a closed CPS case isn’t automatically a nail in the coffin during custody battles, it’s never off the table either.
Relevance is the key. If the case ties into current issues – especially recent, alcohol- or abuse-related incidents – it may resurface in court. But timing, context, and legal strategy matter.
Expungement and sealing offer some relief, but they’re not guaranteed. The best defense is honesty, rehabilitation, and a solid legal game plan. Always consult with an attorney who understands how your state handles these complex records.
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