Preparing for a Hearing in Which a Protective Order Has Been Requested in Texas

Preparing for a Hearing in Which a Protective Order Has Been Requested in Texas

Facing a protective order court hearing in Texas can be a daunting experience. This article serves as a concise guide to help individuals understand the steps and preparations necessary to approach this legal challenge with confidence. From gathering necessary documents to understanding your legal rights, we cover essential aspects to ensure you’re fully prepared for what lies ahead.

Timelines and Advocating for Minors in Protective Order Cases

After applying for a protective order, setting a hearing date becomes the next step. You must inform the individual against whom the protective order is sought about the time, location, and date of the hearing. Time is often critical in these cases, so a court will not schedule the hearing more than fourteen days after you apply for the protective order.

In larger counties, the court must set a hearing within 20 days of the application date. For a county to qualify as “larger,” it must have more than 2 million residents.

When applying for a protective order on behalf of a child, you might wonder how to convey your child’s thoughts and experiences during the hearing. In Texas, the law allows a child under the age of 12 to make a statement describing the act of family violence to you, and you can then relay this statement in court.

Under normal circumstances, such testimony would be inadmissible under the hearsay rule, which bars out-of-court statements used to prove the truth of the asserted matter. However, the state has determined that there the likelihood of truthfulness and trustworthiness is great enough that such statements made under oath are admissible into evidence.

What Must the Judge Actually Decide in a Protective Order Hearing?

The judge in your protective order hearing has to answer the following, two part question: did family violence occur and whether or not family violence is likely to occur in the future? If the judge determines that family violence has occurred and is likely to recur, they must issue a protective order. The order will apply only to the person who committed the acts of family violence.

Judges have considerable discretion in deciding what constitutes family violence and its likelihood of recurrence. In family law, this decision often hinges on the specific facts of a case rather than strictly on law. Judges will closely examine the alleged perpetrator’s past behavior to forecast future actions.

One factor that is extremely important is that as far as a victim’s fear of imminent physical harm is concerned, the judge will not look at the objective actions of the perpetrator to answer this question. The only thing that the judge will concern himself with is whether or not the applicant has a reasonable fear of that person. Therefore, even threats of violence, without physical contact, can justify issuing a protective order against the individual.

Can the Perpetrator of Family Violence Agree to a Protective Order Being Issued Against Him or Her?

Preparing for a Hearing in Which a Protective Order Has Been Requested in Texas

It is possible to negotiate a protective order with the individual responsible for the family violence. This person will likely need legal representation and must be persuaded that a protective order is inevitable, regardless of whether a settlement is reached. Any agreement must be in writing and receive the judge’s approval.

You should prepare your proposed terms for the protective order and present them to the opposing party for review. Following discussions, you can reach a settlement on the protective order’s terms. If the court approves this agreement, the judge will finalize the order.

What Goes Into a Protective Order?

We’ve broadly covered what a protective order is and its benefits for you and your household. Now, let’s delve into the specific actions that a protective order can block in relation to you and your family.

Firstly, a protective order can bar the perpetrator of family violence from taking your child out of school. This restriction means that once a protective order is in place, your spouse cannot pick up your child from school without your permission or take the child from you at a neutral location. The order encompasses these scenarios, safeguarding your child regardless of the specifics mentioned in your allegations.

Similarly, a protective order shields your property. Functioning like a temporary order in a divorce case, it prevents your spouse from entering your home to damage, sell, or tamper with any jointly owned assets, known as community property in Texas. While you might allow your spouse to take their vehicle when leaving, the order requires that non-essential items within the home remain untouched.

Surprisingly, protective orders also extend to pets, including companion and service animals, under the Texas Family Code. The individual restrained by the order cannot remove any animal from your home, ensuring the safety and presence of even your service or companion animals.

What Happens With Your Home During the Time That a Protective Order Is in Place?

The judge may grant you exclusive use of your home for the duration of the protective order, potentially restricting access to others as well. Furthermore, the court might allow the respondent to have possession of and access to your child during the protective order’s validity.

Remember, if you’re already under a family court order from a divorce or child custody case, it’s crucial to ensure the protective order’s terms do not conflict with those of the family court order. Conflicting terms will default to the family court order’s authority, potentially undermining the efforts to establish the protective order.

When seeking a protective order post-divorce decree, you and your attorney must simultaneously file a motion to modify the divorce decree alongside the motion for the protective order. In this modification petition, request adjustments to any aspects of the divorce decree that conflict with the protective order’s demands. However, if the court grants a temporary ex parte protective order, this order temporarily overrides any existing orders, prioritizing your immediate safety and protection.

What Will Be Required for the Responding Party in Relation to the Protective Order?

Protective orders incorporate a rehabilitative component. The judge may mandate the responding party to attend prevention programs offered by the Texas Department of Criminal Justice. Additionally, social workers might be assigned to discuss family and household issues. Community service might also be a part of the order to diminish the chance of future family violence.

The individual responsible for the family violence must submit an affidavit within 60 days of the order’s issuance, affirming the commencement or the unavailability of a nearby class/program. Furthermore, they must notify the court 30 days before the order expires, certifying program completion. Failure to comply can result in contempt of court charges.

The List of Items That Are Included in a Protective Order:

In no particular order, here are the most important elements of a protective order. The respondent will be barred from doing any of the following:

  • Harassing communication with the protected individual or their family
  • Using others to harass or threaten the protected person or their family
  • Any communication with the protected individual or their family, unless through legal counsel
  • Approaching the residence, workplace, school, or any frequented location of the protected individual
  • Engaging in behavior that harasses, annoys, abuses, embarrasses, or harms the protected individual
  • Possessing a firearm, with exceptions for police officers
  • Committing further acts of family violence

The order must precisely detail prohibited locations and required distances between the respondent and the protected parties.

How Long Can a Protective Order Last in Texas?

Preparing for a Hearing in Which a Protective Order Has Been Requested in Texas

A protective order can be in place for no longer than two years. The order will specify for how long it is valid. The respondent may request a court review of the necessity of the order no sooner than one year after its initiation.

Final Thoughts on Protective Orders in Texas

Going through the process of obtaining a protective order can be extremely taxing from a mental and emotional perspective. You will not be operating at full capacity due to the stress, anxiety and possibly the physical pain that you have been through during the episodes that have led to your having to file for a protective order. The best thing you can do for yourself and your family is to ensure that your application is filed for correctly and you have yourself up to eventually have that application turned into an approved protective order.

The attorneys at the Law Office of Bryan Fagan guide people just like you through difficult family law circumstances every day. In order for you to learn more about your options, the law in Texas and what our office can do for you and your family, it is a good idea to contact us today. We can set up a free of charge consultation for you to come in and speak to one of our licensed family law attorneys. These consultations will allow you to answer questions and to learn more about our office and the services we can provide to your family.

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