Family violence protective orders can help protect you or a loved one from harm caused by family violence. In Texas, family violence is defined as any act committed by one family or household member against another family or household member that is intended to cause physical harm, bodily injury, assault, or sexual assault. Additionally, family violence can also be a threat that reasonably places the family or household member in fear of physical harm, bodily injury, assault, or sexual assault.
The question that we will want to ask ourselves at the outset of today’s blog post is whether an abuser can be removed from your home were you to find yourself in a position where you have been a victim or at risk of becoming a victim. A judge in Texas can take into consideration whether to exclude the abuser from your home and allow you to stay in the home if your home is jointly owned or leased by you and the abuser, owned, or leased by you, or owned or leased by the abuser and that person must support you or support your child.
To exclude the abuser from your home as part of a temporary ex parte protective order there are several circumstances that you must be able to prove to have a judge grant your request for a protective order. First, you must currently live in the residence or you have lived there within the 30 days before you applied. Next, the abuser must have committed an act of family violence against you or a member of your household within 30 days before you applied. Finally, there must be a clear and present danger that the abuser is likely to commit family violence against you or a member of your household again.
What protections are afforded in a protective order?
A protective order can order the abuser to stop committing acts of family violence or any acts that are likely to harass or embarrass you or a family member. If your abuser has been communicating with you against your will then the order can specifically state that he or she is no longer able to do so when it comes to you or a family member of yours. Or, if you need to be able to communicate with this person then the order can specify that threatening forms of communication are not allowed.
Many times, the concern that a person in your position may have is that the abuser is lurking around your home or your child’s school. Thankfully, a protective order can order the abuser to stay a certain distance away from your home or the child’s school. Other places that your abuser can be barred from entering include your place of employment or the home of a family member
In some instances, a condition of having the protective order lifted would be that the abuser would need to attend a course or therapy session that is relevant for persons with a history of engaging in acts of family violence. This type of language can be inserted into the protective order and the person would be ordered to take part in these classes to have the protective order lifted or be able to see their children.
Speaking of the children, if your abuser is the mother or father of your children then you would have concerns about allowing the person to be able to have access to the kids. You can make this known in your petition for a protective order and allow a judge to issue a ruling on the subject. For example, if a judge determines that your abuser is not a physical threat to the children, he or she may still choose to issue temporary visitation and possession orders that spell out how the children are to be exchanged when a period of possession ends.
For example, instead of doing pick up/dropping off your children at your home or that of your co-parent, a judge may order that the possession exchanges occur in a public place or even in front of a police station. The whole point of issuing temporary orders on visitation and possession is to best ensure the safety of you and your children. In other circumstances, a judge may pause possession of your children for your co-parent due to their behavior. Here, the individual circumstances of your family will matter a great deal.
If you are going through a divorce, or about to go through a divorce, a judge may insert language into your protective order that allows your spouse to pay you spousal support and/or child support for the duration of the protective order. This is important especially if you are reliant upon your spouse for income.
What is the correct county for you to file your application for a protective order?
There is a range of options for you to consider filing for your protective order application. You may file your application for a protective order in the county where you live, in the county where your abuser lives, or in the county where the family violence took place. Keep in mind that if you have a divorce case that is pending or a child custody case that is pending you will need to file your application for a protective order in the county where that case is ongoing. Additionally, you should notify the clerk in the petition for a protective order that you also have a divorce/child custody case ongoing.
Personal information and confidentiality
You can request in your petition for a protective order that the court keeps your personal information private and confidential. The address and phone number of your home, workplace, or the daycare/school of your child are among the places that can be kept confidential. You must request that this information be kept confidential and make sure that the court has a good address to contact you in the future if your information is to be kept off of public records after the case is over.
Is a protective order only available for persons located in Texas?
If your abuser does not live in Texas this can present a problem for your judge. In that situation, the judge would likely lack what is known as personal jurisdiction over him or her. This means that the judge would not be able to grant an order against the person. However, in some instances, a judge can have personal jurisdiction over an out-of-state abuser. Let's explore what those ways may be, and you can determine whether any of these exceptions apply to your situation.
If your abuser has a substantial connection to Texas, then personal jurisdiction may be available in your case. Does your abuser have family in Texas that he frequently visits? Does he or she work in Texas and visit here for business purposes? Another circumstance that may be relevant is if your abuser had lived in Texas up until recently and because of the family violence fled the state to avoid the legal repercussions of his or her actions. You should examine these circumstances closely to decide whether it is likely that a Texas court would have personal jurisdiction over your out-of-state abuser.
The most obvious source of personal jurisdiction for a Texas court over an out-of-state abuser is if the abuser committed acts of family violence against you in Texas. Even if your abuser made a trip to Texas solely to commit the act of family violence that would be sufficient on its face to leave him or her vulnerable to the personal jurisdiction of a Texas court.
One last circumstance that could lead to a Texas court having personal jurisdiction over your abuser is if you file your petition for a protective order and your abuser is served with notice of the lawsuit in Texas. He or she could attempt to flee the state but if he or she is tracked down within the state of Texas and served with the paperwork then the Texas court would have personal jurisdiction over that person.
Ultimately, the judge will consider your circumstances, the nature of the family violence, and the risk posed to you and your household in a situation where you have filed a petition for a protective order. The judge can choose to issue a protective order even if it does not technically have personal jurisdiction over your abuser.
Another way to obtain a protective order against your abuser would be to file your petition for a protective order in the state where he or she resides. However, bear in mind that you may be required to file your petition in person and attend in-person hearings in support of your petition. If that person is a resident of Louisiana, then you may be willing to make the drive. If he or she lives in Oregon, then you may be less likely to travel that distance and bear the expense associated with filing your petition in another state.
What are the different varieties of protective orders in Texas?
There are three types of protective orders available to you in Texas for protection from abuse which is family violence. Those three types of protective orders are 1) Temporary ex-parte protective orders 2) Final protective orders and 3) Magistrate's order of emergency protection- this is also known widely as an emergency protective order.
A family court would likely hear and decide on an application for a temporary ex-parte protective order and a final protective order. A criminal court would hear a motion for a magistrate's order of emergency protection after the abuser is arrested.
Temporary ex-parte protective order
A temporary ex-parte protective order can provide you and your family members with immediate protection from an abuser. The term “ex parte” indicates that this type of temporary order can be obtained without the abuser being able to be present in court for a hearing. In this type of situation, a judge would need to believe the abuser is an immediate danger to you and/or members of your household. You would fill out an affidavit (written statement under oath) which will provide the relevant facts and circumstances to a judge. You can re-present that affidavit orally to a judge and allow the judge to ask you questions further.
As the name would indicate, a temporary ex-parte protective order would last only for a limited time. You can look at the temporary order to determine the length of its efficacy. A typical length for one of these types of temporary protective orders would be for up to 20 days. An additional 20 days can be tacked onto the initial order's length by your motion or the decision of the judge. This occurs typically in circumstances where your abuser was not successfully served with notice of the order within the initial 20-day period.
Final protective order
A final protective order is effective for as long as it states within the order itself. Two years is the maximum length of time that a protective order can be granted. However, a judge can issue a protective order to last for longer than two years in a few circumstances. The first would be if the abuser commits a felony while abusing you. Using a firearm or committing a similar offense would be when a felony act may be involved in the abuse. This applies even if the person was never charged with having committed a felony by a criminal court.
Next, a court would consider the nature of the injuries suffered by you or the member(s) of your household that was abused to determine the severity of the injuries sustained. If the serious bodily injury was caused by the abuser, then a court can issue a protective order to last for longer than two years.
Finally, if you had two or more protective orders issued against the abuser in the past and the judge found that the judge did commit an act of family violence and is likely to do so in the future then a current family court can issue a protective order to last for longer than two years.
The abuser will have an opportunity to file a motion to have the protective order lifted after one year- no matter how long the judge issued the order to last. A hearing would then be held whose purpose is to help the judge figure out if the protective order should be lifted. Whether there is a continuing need for the order would be the main point of emphasis in this hearing. The judge can choose to lift the order completely, keep it in place as originally set or change the date on which the order will be lifted. Keep in mind that just because your abuser has obeyed the order to that point does not necessarily mean that the order will be lifted or shortened in a hearing like this.
How does jail time impact the length of a final protective order, if at all?
No matter what happens in a hearing to lift a protective order, an order can be valid for longer than the length of time stated in the protective order itself. This is true if your abuser is in jail or prison when the order expires, or he or she was released from prison within a year of the order expiring. If either of these situations applies in your case here is what you can expect to happen.
First, if your abuser was sentenced to a term of five years or more of time in prison then the order will automatically expire on the first anniversary of the date he or she is released from prison. On the other hand, if your abuser was sentenced to serve a term that is less than five years in length then the order will expire on the second anniversary of the date he or she was released from prison.
It may be a good idea for you to request a brand-new order from the court to reflect any of these new dates. This is because a law enforcement officer may have an easier time enforcing the order when the length of the order and the date of expiration is clearly stated within the order.
No matter what you are facing when it comes to your situation with abuse in the home, you have advocates available to you and your family. The attorneys with the Law Office of Bryan Fagan are honored to serve people in your shoes every day here in southeast Texas. Contact us to learn more about how we can help you and your family move past difficult circumstances to a brighter future.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained 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 person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.