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 then it is up to the discretion of the judge 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 is able to do so as well. In certain instances a district attorney or the judge him/herself 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 at the time that the order is issued by a judge. The only exception that I can think of in this regard is if you are requesting that the defendant be excluded from his or her residence. If this is the case the judge would need to have the person present in order 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 who is involved in a protective order case?
A protective order is applicable 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 in regarding to 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 in regard to potential family violence but he or she is 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 is a state that the child has significant connections to.
In order to qualify as a home state, your child must have resided in Texas for at least the past six consecutive months in the time period immediately preceding the filing of the case. As long as you or the child’s other parent continues to live in Texas it will have jurisdiction over the child.
Significant connections means that the child and at least one part or 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, it is unlikely that Texas would be considered to be your child’s home state when he or she has never resided here but you or your child’s other parent does. There are no significant contacts with the state and obviously no residency.
How can you go about getting an emergency protective order for your child?
The Texas Family Code does not state specifically how an emergency protective order can be sought for your child in order 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 in the event that your child is physically in the State and your child, their sibling or you need protection from abuse or threats of mistreatment. The key 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. In order to ensure that these protections are in place for you as well, interpreters and documents in Braille must be made available to you depending on the type of disability that 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 are able to communicate effectively.
The State of Texas requires that persons with disabilities be provided assistance in hearings to compensate for your 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 fees associated with having an interpreter appointed to your case will be paid by the court.
If you are vision impaired then you may need accommodations like a Braille reader in order to fully participate in your court functions. The court will assist you by helping to identify any person who is speaking to you as well as well as 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 then 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 adequate time to enter and leave the courtroom in a safe fashion. If you are unable to 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 very seriously allegations of family and domestic violence. We take pride in representing men, women and children who have been the unfortunate victims of violence in the home. As such, if you have questions for one of our attorneys regarding family violence please do not hesitate to contact our office today.
We offer free of charge 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 whatever concerns you may have regarding your particular circumstance.