There is a problem in our State (and you could insert the words country and world in here if you would like) regarding violence between spouses and intimate dating partners. Between emergency phone calls to law enforcement regarding incidents involving abused spouses or partners and lawsuits filed to protect men, women, and their children, we know that this is an all too common occurrence. Add the relatively high rate of firearm ownership in our State into that equation, and we have a highly explosive situation on our hands.
What are state and local governments doing to combat family violence?
Every county in Texas has a history of working with local officials and community groups that will assist you if called upon to prevent family violence. For those in the Houston area, the Harris County Domestic Violence Coordinating Council (HCDVCC) works with the court's system here to collaborate with them and work on how to improve the response to people like yourself who apply for help through the county.
The reason why coordination between groups is so essential is that dozens of groups play a role in keeping you and people like you safe from family violence. The district attorney of Harris County, Houston Police Department, Harris County Sheriff's Office, and other local law enforcement bodies help coordinate defensive efforts on behalf of people who need assistance via protective orders.
Ultimately, the buck stops with the judge in your county. How they appreciate your case and how they view its facts and circumstances will determine whether or not you can be successful in your application for a protective order. I want to spend some time discussing how a judge is likely to handle your case by starting with an overview of how judges work to ensure that all parties to a case are kept.
An overview of a protective order hearing
In cases that involve family violence, a judge will need to hear evidence as to why a protective order should be granted. This begins by serving your spouse or significant other with a notice of the hearing date for the protective order application. In your petition for a protective order, you must be specific in making the court aware of the relationship that you share with the alleged abuser and the date/location/nature of the injuries that you suffered.
Also important is a run-down that you can provide as far as where you work, live, go to school, and the same information for your child and the party from whom you are seeking protection.
What goes into a protective order?
The purpose of a protective order is straightforward- to protect you, deter the other party from acting violently towards you, and be enforceable under Texas law. When discussing a protective order, it is recommended that the following information be included:
-the order must be in writing, and it must be legible. This is important if you represent yourself and will not have an order drafted on a computer by an attorney. If you are submitting a "fill in the blank" protective order, you need to make sure that your handwriting is evident in those sections where you are filling in the blanks
-the names of both parties (you and the person that you are in a relationship with need to be mentioned) as well as the specific language that you believe needs to be included to offer your protection
What to do about firearms?
One of the realities of living in Texas is that we likely know someone who owns a firearm- or owns one ourselves. This is and in itself is not a bad thing, but it can be a concern if you are in fear for your safety and well-being.
If a protective order has been granted against your spouse, then they cannot possess a firearm or ammunition both under state and federal law. In court, the judge will warn your spouse of this prohibition. The judge will ask you and your spouse whether your spouse owns or has a firearm. The specifics will also be asked about- the number of firearms, the type, where they are located, and how they are stored are all relevant to this discussion.
An instruction will then follow from the judge to your spouse on how to dispose of the firearms and what proof must be submitted to the court to show that the firearms are no longer in their possession. The deadline to submit this sort of proof to the judge will also be given, and there will be consequences for the failure to do so. Depending on the circumstances, your judge may want to have your spouse and their attorney appear for a compliance hearing on this subject.
Keep in mind that the court works with local law enforcement bodies on how firearms can be surrendered. These weapons can be stored on-site at police and sheriff's stations for as long as the protective order runs. Whatever the situation may be, no judges that I have ever seen will allow your spouse to tell them that a family member or friend will be able to store the weapons for them.
How to enforce a protective order
If your spouse were to violate a protective order, you need to know how you can enforce the provisions of that order. Contempt of court is a standard method to deter violations of a protective order. If you and your spouse were to agree to the terms of a protective order, contempt is a possible remedy to the violation of the protective order.
How long can a protective order last?
The final version of the protective order should last for as long as the order specifies, but no longer than two years. If the order is silent as to an expiration date, then the second anniversary of the date the order was issued will be assumed as the expiration date. In the alternative, if a modification of the order is done in court, this will be the date the first protective order expires.
Emergency Protective Orders
If your spouse has been arrested for certain crimes, there are a couple of situations that a judge can issue what is known as an emergency protective order. This order is intended to protect you and your family (people living in your household).
An obvious concern of a person in your situation is that the harm that has already been inflicted will occur again if something is not done to stop it from happening. Once your spouse has been released from jail, this is a significant concern. An emergency protective order can be issued without a hearing and does not require that you and the person you are seeking protection from being your spouse or even a person you are in a dating relationship with.
A judge has it in their discretion to issue a protective order against a person before they are out of jail if they have been arrested for a crime involving family violence, sexual assault, or stalking. However, suppose the arrest for a crime involves family violence that led to serious bodily injury or involved using a deadly weapon. In that case, the judge must issue an emergency protective order before the person is released from jail.
An overview of an emergency protective order- the topic of tomorrow's blog post
If today's subject matter on protective orders was of interest to you, then I recommend that you head back here tomorrow to read more about emergency protective orders. In the meantime, if you have any questions about how our office can assist you in protecting yourself and your family, please do not hesitate to contact us. We offer free of charge consultations six days a week with one of our licensed family law attorneys.