If you or a member of your household has been the victim of an act of family violence, or fear that you will become a victim, there are steps you can take to protect yourselves. The first step would be to apply for a Protective Order. This application would need to be filed with the clerk of whatever court in your county or area oversees the awarding of protective orders. If you have a family law case already filed with a court you can file it as a pleading within the pre-existing case.
The standard by which a judge must view your situation would be to determine whether or not family violence has occurred and is likely to occur in the future. This means that you cannot be approved or awarded a protective order in Texas unless you have established through evidence to the court that family violence has already occurred. On top of that, you must be able to present further evidence that, unless a protective order is granted, that acts of violence are likely to occur subsequently. This is a significant burden and you must be prepared to submit sufficient evidence to overcome this burden.
As I mentioned earlier, there are options for you to file your application for a protective order in Texas. The county or district court where your family case is being heard, a district court set aside solely to administer the awarding of protective orders, or a juvenile court that has the ability to award protective orders all have the ability to award protective orders. Now that we have established how a protective order can be applied for, let’s take a look at who can submit an application.
Who can file an application for a protective order in Texas?
Any adult member of your household or your family can file an application for a protective order. The purpose of the application would be to protect the applicant him or herself, or a member of their family or household. Note that if you are in a dating relationship and have suffered violence by your partner, you can file an application for a protective order. In addition, any adult may file an application for a protective order on behalf of a child who has suffered due to family violence. You do not need to be a member of that child’s household in order to file an application.
Definitions of important terms and concepts
In an age where the definition of the word “family” has been stretched (for good and bad), it would make sense for us to also define family for the purposes of protective order applications are concerned. Family means persons who are related by blood, ex-spouses or persons that are parents of a child who are not married. Foster parents and foster children are considered to be family whether or not they live together.
Household is defined a little more liberally. A household is a unit of persons who live together in the same dwelling. It does not matter if the persons are related to one another. A household can encompass a family or non-family unit.
Family violence can be defined a number of different ways. I would begin a discussion of family violence by telling you that it is an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault.
When it comes to a child who is a member of a household or family, family violence can include abuse as displayed by a physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent or guardian that does not expose the child to a substantial risk of harm.
Let’s unpack that last definition a little more before we move on. A lot of times a child will suffer injuries that are inconsistent with an explanation that is provided to doctors, teachers, principals and other adults that are involved in a child’s life. A child that fell down the stairs may have fractured an arm, but it can look a lot different than a fractured arm that was suffered when a parent twisted that arm out of frustration.
The other thing to keep in mind is that parents in Texas can discipline their children. I’d go a step further and tell you that it is necessary that parents discipline children. However, that discipline needs to be reasonable and needs to address only the bad act performed by the child. If a member of your household goes too far in disciplining your child, and hurts your child, then that would be grounds for the filing of an application for a protective order.
Can you get a protective order without going before a judge?
This is a reasonable question to ask, especially if you are in immediate fear for your safety or for a member of your household’s safety. You can apply for a protective order against a member of your household or against a person that you are dating using the methods that we detailed earlier in today’s blog post. If the judge to whom you have sent in your application believes that based on the information you submitted in your application that you have presented a scenario where there is a clear and present danger of family violence, a protective order may be issued without a hearing being held.
This is called entering a temporary ex-parte protective order. Typically, these orders are more limited in scope than orders awarded after a hearing in open court. Whatever basic provisions can be listed in the order that would best ensure your safety or the safety or a family member in your household will be included. Any additional orders that are more specific in nature would likely be decided upon in a hearing once one could be set and your opposing party notified of the date and time of that hearing.
Temporary ex-parte protective orders are similar to temporary orders in a child custody or divorce case in that they can order a person to either do or not do something in relation to your family. A temporary ex-parte protective order is effective for up to twenty days after the date it is issued. An extension of an additional twenty days may be granted, with good cause, if applied for.
What information has to be included in an application for a protective order?
If you are applying for a temporary ex-parte protective order you have to detail the facts and circumstances that relate to the act of family violence. Furthermore, you must be able to detail why a protective order is necessary as a result of that family violence and how its issuance would go towards preventing future acts of harm from occurring. Since you are asking for an order without giving your opposing party an opportunity to present their side of the story, there must include a justification for requesting the immediate issuance of an order.
This run down of the circumstances that led to this application have to be signed by the person who has applied. Typically this is done as part of an affidavit testifying to the truthfulness of the statements made. It must be obvious to the judge who reviews the application that there is an immediate danger to you or a member of your household.
As far as how to fill out the application, I would suggest that you be as specific as possible when you include allegations. It is important that if you can provide specifics like the dates that violent acts occurred, the specific nature of the bad acts committed and why you believe that violence is likely to occur in the future. If you cannot specify what acts occurred, if you cannot remember exactly what the dates were or have no explanation as to why the future acts of harm are likely to occur, it’s probable that your application for temporary relief will not be granted.
What options are available to you if a protective order is sought against you?
Let’s shift gears and discuss what you can do if a person in your household seeks a protective order against you. You have the right to file a motion at any point in the application process (or afterwards) that will vacate that order and make it void. You would file the motion to vacate, set the case for a hearing, and then notify the other party of the date and time set for that hearing.
In the event that a temporary ex-part protective order is granted against you when one should not have been, you should include in your motion the specific reasons as to why the motion should not have been granted. Just as the other side filled out an affidavit stating the circumstances that justified the issuance of a protective order, you should fill out your own affidavit which seeks to discredit the other affidavit.
When can you be barred from entering your home?
There are only limited circumstances in which you can be barred from entering your residence as a result of a temporary ex-parte protective order having been issued against you. First, the person applying for the protective order must file an affidavit along with that application that goes through and provides a specific description of the facts, circumstances and evidence that justifies excluding you from your home. On top of that, a hearing must be held with the judge and the applicant where the applicant testifies as to why the protective order needs to be issued without the need for a second hearing that allows both parties to be present.
After that, there are additional circumstances that must be in place for you to be barred from the residence. The applicant must be able to show that you have either resided in the home within thirty days of the order being issued or are currently residing there. If you resided there 90 days ago but no longer do so then a protective order cannot be granted. The act of family violence must have also been committed within that thirty day window of residing in the home of that family. The last circumstance that needs to be in place would be that there is a clear and present danger that you are likely to commit
How to make law enforcement aware of a temporary ex-parte protective order
If you have applied for and obtained a temporary ex-parte protective order that bars a spouse or other family member from the residence, the judge has to issue an additional, written order that is directed to the sheriff, constable or chief of police for your area. The appropriate law enforcement officer will go to your home with the family member who is impacted by the order and inform him or her that the court has barred their entry into the residence. You will then be able to enter the home while the family member is restrained. These protections are only in place once the protective order is granted. It would be wise to seek shelter elsewhere during the pendency of the application
More on protective orders will be posted in tomorrow’s blog post
Please join us tomorrow as we pick up where we left off today in regard to protective orders and family law cases. In tomorrow’s blog post we will discuss what happens in a contested hearing on protective orders and how you can prepare for one.
In the meantime, 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 here in our office. These consultations allow you to ask questions and receive direct feedback about your specific circumstances.