Otherwise known as a Magistrate's Order of Emergency Protection, an emergency protective order must contain the following information no matter what your particular circumstances are.
As we discussed yesterday, a judge must note that if the person you are seeking the order from was arrested for a family violence offense that involved serious bodily injury to you or the use of a deadly weapon, then an emergency protective order must be issued. On the other hand, if the person was arrested for an offense involving family violence, sexual assault, or stalking, it is up to the judge's discretion as to whether or not the emergency protective order will be granted.
Who can apply for an emergency protective order?
You can apply for the emergency protective order, your guardian can, or a police officer can do so as well. In certain instances, a district attorney or the judge themself can apply for one on your behalf.
Does the application for an emergency protective order have to go before a hearing?
A hearing on whether or not there is sufficient cause to grant the request is not necessary when it comes to an emergency application. You nor the person you are seeking protection from needs to be present when a judge issues the order. The only exception that I can think of in this regard is requesting that the defendant be excluded from their residence. If this is the case, the judge would need to have the person present to be heard on that sort of issue.
What can a judge bar the defendant from doing?
As far as behavior is concerned, the defendant in your case would be kept from committing additional acts of family violence, communicating either directly or indirectly with you or a family member, going near your home or workplace, or from stalking you.
What protections are afforded to your child involved in a protective order case?
A protective order applies to your child who is already subject to a child custody determination in Texas. A Texas court can exercise temporary emergency jurisdiction over your child and can issue a temporary order regarding emergency protective measures that may be appropriate given your circumstances. Child custody and child support provisions can be included as well.
What happens if the child in question is part of an out-of-state child custody case?
When a Texas child needs to be protected regarding potential family violence, but they are already the subject of a child custody order from an out-of-state court, the law allows Texas courts to issue emergency temporary orders to protect that child from abuse or threats of abuse.
How will a Texas court determine if it has jurisdiction to hear a protective order case involving an out-of-state child?
A court in Texas can take jurisdiction over a case if Texas is the child's home state or in a state that the child has significant connections to.
To qualify as a home state, your child must have resided in Texas for at least the past six consecutive months in the period immediately preceding the filing of the case. As long as you or the child's other parent live in Texas, it will have jurisdiction over the child.
Significant connections mean that the child and at least one part of a person acting as your child's parent must have a significant connection to the State other than living here. Attending school in Texas, working in Texas, receiving medical treatment in Texas, or things of that nature is what the statute calls for.
For example, if you or your spouse are in the military and your child was out of State for a year due to your military commitment, this likely would not stop Texas from being your child's home state for family law case purposes.
On the other hand, Texas is unlikely to be considered your child's home state when they have never resided here, but you or your child's other parent does. There are no significant contacts with the State and no residency.
How can you go about getting an emergency protective order for your child?
The Texas Family Code does not state expressly how an emergency protective order can be sought for your child for that order to take the place of any orders from an out-of-state court. Once you have established through a court that Texas has jurisdiction over your child, a protective order can be issued without any person (either you, your child, or the defendant) present in court.
In the alternative, even if it is determined that Texas does not have jurisdiction over your child, it can still issue temporary emergency protective orders if your child is physically in the State. Your child, their sibling, or you need protection from abuse or threats of mistreatment. The critical point to understand is that while a Texas court can issue temporary emergency protective orders for your child, it cannot modify child custody determinations from another state.
Applying for a protective order when you have a disability
The law in the United States is such that if you have a disability, you are entitled to the same rights and protections afforded to those without disabilities. To ensure that these protections are in place for you, interpreters and documents in Braille must be made available to you depending on the type of disability you have. If, for example, you need to attend a court hearing, then the court must make sure that you are provided with an interpreter if you are deaf so that you can communicate effectively.
Texas requires that persons with disabilities be assisted in hearings to compensate for their physical or mental disability. If you are determined to be deaf, then a certified interpreter will be appointed for you in any civil court in our State. The court will pay the fees associated with having an interpreter appointed to your case.
If you are vision-impaired, you may need accommodations like a Braille reader to participate in your court functions fully. The court will assist you by helping to identify any person who is speaking to you and having someone available to guide you into and out of the courtroom and courthouse. If you have an assistance animal, you will be given special privileges to enter the building with that animal.
Finally, if you have mobility impairments, you may also need special accommodations to get into the courtroom or courthouse on the day of your hearing. Court personnel will seek to ensure that you have adequate time to enter and safely leave the courtroom. If you cannot stand up for the entirety of a hearing (as some courts do in Harris and other counties), you will be given accommodation to sit. The bottom line is that the judge and courtroom personnel will treat you with the utmost respect- no different than if you were not disabled.
Questions about emergency protective hearings? Contact the Law Office of Bryan Fagan
The attorneys and staff with the Law Office of Bryan Fagan, PLLC, take family and domestic violence allegations very seriously. We take pride in representing men, women, and children who have been the unfortunate victims of violence in the home. If you have questions regarding family violence for one of our attorneys, please do not hesitate to contact our office today.
We offer free consultations with a licensed family law attorney six days per week. It would be our honor to meet with you to answer your questions and address any concerns regarding your particular circumstance.
