Once you have applied for a protective order, the next step would be the setting of a hearing date. The time, location and date of that hearing must be made known to the person against whom the protective order is sought. Since time is often of the essence in cases like this, a court may not set the hearing date any later than fourteen days after the protective order has been applied for. In larger counties the deadline is a hearing must be set within 20 days of the application date. Note that the county you reside in must have more than 2 million citizens living there in order to qualify as one of the “larger” counties.
If you have applied for the protective order on behalf of a child, you may be wondering how your child’s thoughts and experiences can be expressed in the hearing. The law in Texas is that a child under the age of 12 may make a statement that describes the act of family violence to you, and you may repeat that statement in court. Normally testimony like this would be barred under the rules against hearsay (out of court statement used in court to prove the truth of the matter asserted). However, the state has determined that there the likelihood of truthfulness and trustworthiness is great enough that such statements made under oath are admissible into evidence.
What must the judge actually decide in a protective order hearing?
The judge in your protective order hearing has to answer the following, two part question: did family violence occur and whether or not family violence is likely to occur in the future? In the event that the judge does find that family violence occurred and that it is also likely to occur in the future a protective order must be issued. The order will apply only to the person who committed the acts of family violence.
The determination about what constitutes family violence and whether or not it is likely to occur in the future is a question that judges are given a great amount of discretion to answer. This is like most things in family law, generally speaking: it is a fact based determination, not always a strictly “law” based one. The judge in your case will be interested in looking at the past behavior of the alleged perpetrator of family violence and will use that past behavior to predict what may happen in the future.
One factor that is extremely important is that as far as a victim’s fear of imminent physical harm is concerned, the judge will not look at the objective actions of the perpetrator to answer this question. The only thing that the judge will concern himself with is whether or not the applicant has a reasonable fear of that person. This could mean that even if a person in your household never hits you, but threatens to do so, this can be enough to cause a protective order to be issued against him or her.
Can the perpetrator of family violence agree to a protective order being issued against him or her?
You may be able to engage with a settlement on the issue of a protective order with the person who committed the acts of family violence. It is likely that this other person would need to have a lawyer and be convinced that a protective order will be issued regardless of whether or not a settlement is reached on the issue. An agreement would need to be in writing and would have to be presented to the judge for his or her final approval.
You would need to have your set of terms ready to present to the opposing party for his or her review. From that point forward you all could discuss the terms of the protective order and ultimately can agree to settle on certain orders to be contained in the protective order. If it meets the approval of the court it would be finalized by the authority of the judge. The standard a judge would use when viewing an order like this is whether or not it is in the best interests of the applicant and their family.
What goes into a protective order?
We have talked generally about what a protective order is and how it can benefit you and members of your household. Now I would like to spend some time discussing with you what the protective order may specifically prevent a person from doing in relation to you and your family.
First, the protective order can prevent the perpetrator of the family violence from removing your child from school. This means that in response to having a protective order issued against him, your spouse cannot go to your child’s school and take your child the school when you are not there. Likewise, he cannot ask to meet you at a neutral location and take the child from you. The protective order will extend to situations like this even if there were no concerns specifically laid out in your allegations against him.
Likewise, your property is protected under a protective order. This is similar to a temporary order from a divorce case. Your spouse cannot come into the home and destroy, sell or otherwise harm property that you all own. This even counts towards property that is jointly owned between you and your spouse. In Texas this sort of property is known as community property. I imagine that you would allow your spouse to take their vehicle with him or her before leaving the home, but property within the house that is not essential for him or her take would need to remain with you.
Believe it or not, pets are actually covered by protective orders as well. Pets, companion animals and service animals are covered under the Texas Family Code’s laws associated with protective orders. The party who the protective order was sought against cannot remove an animal from your home- no matter if the animal is merely a pet or is a service animal of yours.
What happens with your home during the time that a protective order is in place?
The judge in your case may determine that you should have exclusive use of your home during the time that the protective order is valid. In addition, the protective order may bar other people from your residence as well. What’s more, the court may order that the responding party may be able to have possession of and access to your child while the protective order is valid.
What you need to keep in mind is that if you have a court order from the family court associated with a divorce or child custody case, you need to make sure that the terms of the protective order do not go against the terms of the family court order. The reason for this is that if there is conflict in the terms, then the family court order will be in control. All the work you had done to get the protective order set up would be for naught.
If you and your attorney are seeking a protective order after a divorce order has been granted, you would need to file a motion to modify the divorce decree simultaneous to filing your motion for the protective order. In the modification petition, you should ask the family court to change anything within the divorce decree that doesn’t line up with what you are asking for in the protective order. The exception to this rule is that if you are granted a temporary ex parte protective order then that order takes precedence over any other order that you have in place.
What will be required for the responding party in relation to the protective order?
There is also a rehabilitative component to protective orders. The judge in your case may order the responding party to complete classes designed to prevent future occurrences of harm. These programs are through the Texas Department of Criminal Justice. Also, social workers may be made available to him or her to meet with and discuss problems in your household and family. There may also be community service components to the order, as well. Basically, all of these steps would be taken to reduce the likelihood that family violence would occur again in the future.
To show proof of attending these courses, the person who committed the acts of family violence would need to sign an affidavit (sworn statement under oath) within 60 days of the protective order being issued that states that he or she has begun the class/program or that a course is not available for him or her to enroll in that is close to their residence. Likewise, a similar statement would need to be sent to the court no later than 30 days prior to the expiration of the order that states the course/program has been completed. Failure to meet either of these requirements can be held in contempt of court.
The list of items that are included in a protective order:
In no particular order, here are the most important elements of a protective order. The respondent will be barred from doing any of the following:
-communicating with a person who is protected under the order or is a family member of a protected person in a harassing manner
-communicating any sort of harassment of threats through any other person in order to ultimately reach the protected person or a member of their family
-communicating in any way with a person protected by the order or a member of their family unless that communication is through an attorney for any of those parties
-going to the residence of a protected party of their family, the place of business, school or any other place a person protected under the order is known to congregate
-no acts that can be found to be harassing, annoying, abusive, embarrassing or otherwise harmful to a person protected under the order
-no possessing of a firearm (unless the respondent is a police officer)
-finally, the respondent is barred from committing any future acts of family violence
The protective order needs to be extremely specific with naming locations that the person must avoid and the distances (in feet, for example) that must be kept between the respondent and the parties to be protected under the order.
How long can a protective order last in Texas?
A protective order can be in place for no longer than two years. The order will specify for how long it is valid. The responding party under the order may ask the court (no sooner than one year after the order was initiated) to review the protective order and to make a ruling on whether or not the order is necessary.
Final thoughts on protective orders in Texas
Going through the process of obtaining a protective order can be extremely taxing from a mental and emotional perspective. You will not be operating at full capacity due to the stress, anxiety and possibly the physical pain that you have been through during the episodes that have led to your having to file for a protective order. The best thing you can do for yourself and your family is to ensure that your application is filed for correctly and you have yourself up to eventually have that application turned into an approved protective order.
The attorneys at the Law Office of Bryan Fagan guide people just like you through difficult family law circumstances every day. In order for you to learn more about your options, the law in Texas and what our office can do for you and your family, it is a good idea to contact us today. We can set up a free of charge consultation for you to come in and speak to one of our licensed family law attorneys. These consultations will allow you to answer questions and to learn more about our office and the services we can provide to your family.