When a family law attorney considers important factors in a potential divorce or child custody case, perhaps none is as quite as impactful as family violence. The reasons for this are obvious. Acts of family violence are irredeemable, despicable and any other term that you would want to use that connotes something extremely negative about the person who engages in that sort of behavior. I wanted to make note of this early on in today’s blog post because for the remainder of it I would like to take this opportunity to write only about the impacts of that behavior on a family law case in Texas.
What family violence is considered to be
Family violence is more than just hitting your spouse or your child. What’s more- the people that are considered to be in your family seem to grow every year, with a greater number of relatives potentially counting as family for the purposes of assigning a person punishment for having acted violently. If you are in a dating relationship with someone and he or she is violent towards you then this would typically qualify for a crime of family violence.
The only major factor that needs to be mentioned at this stage is that while being found guilty of having committed a criminal act of family violence is more difficult (beyond a reasonable doubt is the criminal standard), in family court you must only present sufficient evidence that a judge would find that it is beyond the preponderance of the evidence presented that an act of family violence did occur. Imagine the scales of justice for a moment. A preponderance of the evidence means that one of the scales would be tipped 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 your spouse were found to have committed an act of family violence then he or she will be in for a tough time during a divorce or child custody case. For instance, rather than being named as a joint managing conservator of your child, which is what is done in the vast majority of child custody cases, your spouse would be likely named as merely a possessory conservator while you have Sole Managing Conservatorship rights. This basically means that your spouse will have times that he or she can see your child (often in a supervised location) but that his or her rights to make decisions on behalf of your child are severely curtailed in comparison to your own.
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 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. The incident in question involved our client getting upset at the opposing party’s use of a cell phone in order 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.
A divorce was subsequently filed and this issue was taken up with 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. The reason, I believe, why this is the case is that people are willing to go to greater lengths in order 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. However, if you are in a position where you have been accused of having committed an act of family violence it can spell disaster for you in your case both in 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 believes that it is likely that acts of violence could likely occur in the future then you can expect a protective order request to be granted.
The goals of a protective order are to create a situation where your violent spouse is held accountable for their actions while best ensuring your safety in the case moving forward. Your spouse will likely not be allowed to come within a certain distance from you or from your children unless your children are being supervised.
Keeping your abuser away from you is the most important part of a protective order
If you have been the victim of an act of physical abuse then the judge will want to keep the abuser away from you as much as possible. This is pretty straightforward. Not only will your spouse not be allowed to come within a certain distance of your home, but your office and/or school will also be off limits to him or her. Communication will be conducted through approved of mechanisms like Our Family Wizard. Our Family Wizard is an online tool that allows you and your spouse to communicate using email/messaging on a website. All communication attempts are stored electronically if they need to be reviewed later or potentially used as evidence in a hearing or trial.
In certain situations, a protective order can also include your personal and real property. If your child has been the unfortunate victim of family violence then he or she can and will be protected under the order as well. It is common for your spouse to be forced to leave your home in a protective order as well as to have their visitation and possession schedules laid out in the order in order to decrease the level he or she will have with your children until additional orders are issued by your court.
How to obtain a protective order in a Texas family law case
You can request a protective order through your family court. A court will review your request and the allegations made therein (usually in the form of a sworn statement under oath about what occurred) and hold a hearing on the request in order to allow you and your spouse to present evidence as to why or why not the protective order should be granted.
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.
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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Other Articles you may be interested in:
- Divorcing from an Abusive Spouse in Texas: What you Need to Know
- The Complete Beginner's Guide to Texas Protective Orders
- Common Law Marriage and Texas Divorce Guide
- I Want a Texas Divorce but My Husband Doesn't: What can I do?
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- When is, Cheating Considered Adultery in a Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
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