When examining critical aspects of a divorce or child custody case, few factors are as significant as family violence in Texas. The implications are profound, as acts of family violence are egregious and irreparable. In today’s blog post, I aim to delve into the profound effects of such behavior on family law cases in Texas.
What family violence is considered to be
Family violence in Texas encompasses more than hitting your spouse or child. Additionally, each year, the definition of “family” expands, potentially increasing the number of relatives eligible for consideration under family violence laws when determining appropriate penalties for violent behavior. If you are in a dating relationship and your partner is violent toward you, this typically qualifies as a crime of family violence.
It’s important to note that proving family violence in criminal court is more challenging, as it requires proof beyond a reasonable doubt. However, in family court, you only need to present sufficient evidence for a judge to find that an act of family violence occurred based on the preponderance of the evidence. Picture the scales of justice; a preponderance of the evidence means that one scale tips just slightly below the other.
However, beyond a reasonable doubt means that the evidence you present must weigh your scale down significantly compared to the other side. The burden, therefore, is much heftier in the context of a criminal case.
Conservatorship issues related to family violence
If a court finds that your spouse has committed an act of family violence, they will face significant challenges in a divorce or child custody case. For instance, in most custody cases, the court would likely grant your spouse possessory conservatorship instead of designating them as a joint managing conservator of your child. This implies that while you would retain sole managing conservatorship rights, your spouse would have specified visitation times with your child, often under supervision. They would have significantly restricted authority to make decisions on behalf of your child compared to yours.
Courts typically proceed with a great deal of caution when it comes to family violence
From my experiences, family courts will usually err on the side of caution when it comes to deciding that family violence has occurred in a case. The reasons for this is that most judges will not want to move on from this issue without seriously addressing it. Furthermore, if something were to happen down the line in a case that was the result of additional incidents of family violence in Texas then that judge would be at risk of a reprimand.
What types of punishments and restrictions will be imposed in a family law case when family violence is an issue? Let’s consider that protective orders are usually very effective at deterring harmful acts in the context of a family law case. We will discuss more protective orders later in this blog post but I wanted to introduce the topic at this stage. Safety is the number one priority of a judge when it comes to a family law case, and being overly cautious in this area is something that is very difficult to argue with. The family violence in question does not have to be something that resulted in major injuries or even the police. However minor the incident may have been it is something that could result in your case changing dramatically for the worse if you are the perpetrator of the violent acts.
An example from our time in the family courts
In a recent case, an opposing party made an allegation of family violence against our client that was quite over the top. In the incident, our client became upset at the opposing party’s use of a cell phone to contact other men. Our client took the phone out of her hands in order to see what it was she was doing. Well, that act led to his wife alleging that he has acted violently towards her.
Subsequently, a divorce was filed, and this issue was brought before the judge. What ended up happening was that the judge did make a finding that family violence had occurred but that finding carried with it no immediate restrictions on conservatorship rights or anything related to that. However, what did end up happening is that in the final decision of conservatorship the judge made rulings that were not favorable to our client and I couldn’t help but think that it was because of the family violence issue.
False allegations of domestic violence are unfortunately a reality in divorce cases
What I have found to be the case is that family violence allegations become more and more common in divorce cases. I believe the reason for this is that people are willing to go to greater lengths to ensure their goals are met in a divorce. Family violence can impact conservatorship issues as we have already mentioned as well as the division of property in a divorce. When courts are as willing (rightfully so) to take all allegations of family violence seriously it makes sense that some people would be willing to bend the truth or make outright lies that family violence has occurred in order to meet those goals.
This is not to say that if you think you have been the victim of a violent act by a spouse or significant other that you should hesitate to bring those issues before a judge. On the contrary- a judge is there to keep you safe and to keep your family safe as well. Yet, if you find yourself accused of committing an act of family violence, it can wreak havoc on your case in both the short and long terms.
The bottom line is that you need to think hard before you commit any action towards your spouse or significant other. You never know what he or she may be thinking or who is watching you. Acts that could be totally benign or non-violent in your mind may actually end up being considered to be violent by your spouse and more importantly by a judge.
Protective Orders and Family Violence
Protective Orders are one of the means by which a court can seek to diminish the future impact of acts of family violence. It can take a great deal of courage in order to bring acts of family violence forward to the authorities especially if you are a person who has been a victim of family violence for years. Violence between spouses or even people that are merely dating can be about control as much as it is about the anger or other emotions that are behind the acts.
What is a protective order in a Texas family law case?
Safety is the name of the game when it comes to a protective order. Many people think only about a judge’s responsibilities when it comes to conservatorship, possession, visitation, property division and similar subjects in conjunction with a divorce but a judge’s top priority in your case will be to keep you and your children safe if you are the victim of an act of family violence.
We can extend family violence to incidents that involve sexual abuse and dating violence as well in order to get a full picture of what a court will be guarding against by considering the possibility of implementing a protective order within a divorce case. You would need to produce evidence that family violence has occurred but typically police reports, witness statements, photographs, and visible injuries are sufficient for this purpose.
If a judge deems future acts of violence probable, they are likely to grant your request for a protective order. The aim of such an order is to hold your violent spouse accountable and ensure your ongoing safety. Generally, the order will bar your spouse from approaching you and your children beyond a specified distance, except for supervised interactions with the children.
Keeping your abuser away from you is the most important part of a protective order
If you have suffered from physical abuse, the judge will aim to keep the abuser as far away from you as possible. This approach is straightforward. Your spouse will not only face prohibition from coming within a certain distance of your home but also from your office and/or school. Communication must occur through approved mechanisms like Our Family Wizard, an online tool that facilitates email/messaging on a website. This tool stores all communication attempts electronically for potential review or use as evidence in future hearings or trials.
In some cases, a protective order may also cover your personal and real property. If your child has been a victim of family violence, the order will protect them as well. Commonly, the order will require your spouse to leave your home and will outline their visitation and possession schedules to minimize contact with your children until the court issues further orders.
How to obtain a protective order in a Texas family law case
You can request a protective order through your family court. The court will review your request and the allegations within it, typically presented as a sworn statement under oath detailing the events. The court will then hold a hearing to allow both you and your spouse to present evidence supporting or contesting the issuance of the protective order.
Physically restraining a spouse, harming your spouse’s body, threatening your spouse, harassing your spouse or stalking your spouse could qualify as an act of family violence in a Texas court. You can file for a protective order on your behalf or that of your child or any other person who lives in your household.
How long will a protective order last?
A protective order that is issued in conjunction with a family law case can last for up to two years with extensions on that duration possible. If a court were to grant a temporary restraining order against your spouse without a hearing then that order could last from 10-20 days at the most. The purpose of this time period is to allow you to get a hearing date and for both sides to be able to present evidence to a judge.
In conclusion, we cannot overstate the impact of family violence on family law cases in Texas. It introduces complexities and challenges that require careful consideration and sensitive handling by legal professionals. From ensuring the safety of victims to navigating legal proceedings effectively, addressing family violence demands a comprehensive approach that prioritizes the well-being of all involved parties. By recognizing the significance of this issue and implementing appropriate legal strategies, attorneys can strive to achieve justice and protection for those affected by family violence in the Texas legal system.
Questions about family law cases and protective orders? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we have covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in our office. We would be honored to sit with you to answer questions and address any issues that you may have.
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
