The force and efforts of our governments worldwide have been focused on mitigating the effects and limiting the spread of the coronavirus over the past year. Now that we are one year past the time those efforts began, we can begin to look back at them with some degree of perspective to determine whether or not they have been impactful and positive. Time will tell whether or not these effects have been as efficacious as our government leaders would have liked. Still, we can already determine the side effects and impacts of various government LED shutdowns on the economy and stay-at-home orders in general.
Pudding us at home more often than not has led to an increase in domestic and family violence in the home. While families do not have the avenues to escape than two other activities, they have spent more time at home. Simply because we are closer together at home than we are spread out around our community, the opportunities for abuse and neglect of children have skyrocketed. You need only perform basic Internet searches to find news articles and statistics showing that abuse and neglect of children have risen.
For example, the orders from school districts that classes resume only online and with no opportunities for in-person learning contributed greatly to these incidents of abuse. One of the things that most people do not consider as far as the benefit of going to in-person school is that teachers, administrators, and counselors can act as lines of defense against abuse and neglect in the home. These teachers and administrators can perform Wellness exams of children and generally assess whether or not their child has likely been abused or neglected.
By not being in school for long stretches of time, these Wellness exams have gone by the wayside, in; as a result, children have suffered. Add to that stress and anxiety surrounding the virus, issues regarding health and well-being overall, and problems associated with loss of income and loss of employment. You have a perfect storm as far as elements that could impact domestic violence and family violence. I'm certainly not in a position to suggest better strategies as a family attorney, but I can tell you that both anecdotally, empirically, and statistically, there has seemed to be an increase in violence in homes, not only in our area but across the world.
Texas family courts offer an Ave for few to take if you or a loved one has been a victim of violence in the home. Obtaining protective orders is just another of the services that the attorneys at the Law Office of Bryan Fagan work on behalf of our clients to accomplish. In today's blog post, I would like to share some information about applying for and obtaining a protective order in Texas. Like most other things under the law, there are steps to follow to complete this objective.
What is family violence?
The Texas family code defines a family as individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together. Blood relatives, ex-spouses, parents of the same child who may not have been married, and foster children and foster parents are considered married in Texas.
Now that we have defined what family means in Texas, we can understand what family violence means. Again, the texas family code defines family violence as 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, but does not include defensive measures to protect oneself. Texas Family Code sec. 71.004.
When will a family court issue a protective order?
A family court shall render a protective order if the court finds that family violence has occurred and is also likely to occur in the future. If the court finds that family violence has occurred in that family violence is likely to occur in the future, the court will render a protective order that applies only to a person found to have committed family violence and may issue a protective order that applies to both parties that are in the best interest of the person protected by the order or member of the family or household of the person protected by the order.
How do you apply for a protective order?
The first step in applying for a protective order in Texas is to file what is known as an application for a protective order with the clerk of your district or County court. An adult member of the family or household may apply to a protective order to protect the person filing the protective order or any other member of their family or household. This means that you may apply for a protective order that not only protects you but protects other people in your family or household.
If you have been the victim of family violence, then you may file for a protective order in the County in which you reside, the County in which the abusive family member resides, or any County in which family violence is alleged to have occurred. This gives you three options to choose from, potentially. You must specify in your application your name and County of residence and the name and County residents of each person who has committed the alleged acts of family violence.
Furthermore, you must specify the relationship between you and the alleged perpetrator of violence and request a protective order. Special rules exist for applying for protective orders during a divorce or child custody case. If you plan on filing for divorce or a child custody case, you should speak to your attorney about the need to file a protective order concurrent with your case. This is something that should be done immediately.
What if you are applying for a protective order after a prior order has already elapsed or expired?
You can be in a position where you need to file again for a protective order after already doing so previously. Any subsequent application for a protective order must include a copy of the expired protective order attached to the current application. You must also describe the violation of the expired productive order if the application alleges that the abusive family member violated the expired protective order by committing an act prohibited under the order before it expired. Or, you must include a description of the threatened harm that reasonably places you in fear of imminent physical harm, bodily injury, assault, or sexual assault.
Are you able to go before a judge to obtain a protective order without your family member being present?
One of the hallmarks of our legal system is that a person accused of having done something like committing a crime or having committed an act of family violence should have an opportunity to address their accuser and present their case to a judge. As a result, courts typically do not hold hearings outside the presence of one of the parties to the case. Hearings that do occur when only one party is present are known as “ex parte” hearings.
He may file a motion for a hearing such as this. Still, your emotion in application per protective order must contain a detailed description of the facts and circumstances concerning the alleged act of family violence as well as the need for the immediate protective order. Every person who has applied for the protective order must sign the document under oath so that a judge can determine their veracity. If the events of your life are so significant and immediate that waiting more time to hold the hearing would be adverse about your best interest, then an ex parte hearing may be held.
How will your family member respond to having a protective order sought against them?
In this case, I am not referencing how your family member will physically or emotionally respond to having your request for protective order be filed. What I am referencing is how your family member will respond legally. Just as the person who has a divorce filed against them is a respondent, the same is true for a person who has a protective order application filed against them. The keyword in the term respondent responds. How much your family member responds to your protective order application?
Your family member as the respondent to your application for a protective order must be provided with notice. This notice would likely be provided personally by a process server or constable. They will be able to file an answer with the court at any point before the hearing date that has been established. However, they are not required by law to answer your application for a protective order. They may file their application for a protective order that must be separate from your own.
A hearing would then be held where you and your family member would be able to present evidence to a judge as to why or why not a protective order should be granted. The judge will determine whether there is sufficient cause to grant your application for a protective order based on the specific circumstances of your case. This is where it becomes difficult for me to offer you an opinion on this subject. Send so much of it as fact based on the specific circumstances that I cannot provide you with examples of situations that may or may not allow you to have your application granted. If you find yourself with specific questions about your family, I recommend contacting one of our licensed family law attorneys immediately.
One issue that I can talk to you about is whether or not you would be able to repeat a statement from one of your children that could be utilized to have your application for protective order granted. Normally, children are not allowed in a courtroom during hearing times. This means that your child would not be able to present their testimony or be present to strengthen your case by providing their testimony.
However, in your application hearing, any statement made by a child 12 years of age or younger that describes alleged acts of family violence against them is admissible as evidence. This is the same concept that applies to a child's statement of alleged abuse against them in a suit affecting the parent-child relationship. The thought behind allowing these types of hearsay statements to be admissible is that their credibility in authenticity is believed to be high. In contrast, the risk of excluding them is also believed to be high.
How can a family court judge create your application for a protective order?
What's your hearing has concluded? The court will determine whether or not family violence has occurred and whether or not the family violence is likely to occur in the future. If the court finds that the family violence has occurred in that the family violence is likely to occur in the future, the court will issue a protective order that applies only to the specific person found to have committed family violence. Additionally, the court may issue a protective order that applies to both parties in the best interest of the person protected by the order or member of the family.
If your court were to issue separate protective orders that apply to two parties and require both parties to do or not to do certain actions, then these orders must be separate and distinct from one another and reflect appropriate conditions for each party. In a protective order, a court may prohibit your family member from removing your child from your possession or the court's jurisdiction. This should give you some degree of Peace of Mind when it comes to concerns over your child being taken from you.
Additionally, the protective order may prohibit your family member from disposing of mutually-owned property or at least by you and that person. For example, if you own a vehicle with your spouse and have a protective order against her, she could drive the vehicle to work but could not destroy the vehicle or steal the vehicle. Importantly, the protective order can also grant you exclusive possession of your home and order your family member to leave the residence. This would apply when your home is jointly owned or leased by you and your family member, and you are currently being denied possession of the home.
When it comes to your children, a protective order can provide you with sole possession and access to your child and require your family member to pay you child support if the person against the tomb the protective order exists is a parent to your child. A court may further order that your family member complete battering intervention and prevention programs that are accredited through the state of Texas. Additional requirements may exist based on the specific circumstances of your case.
What to do if you are concerned about your safety or that of your children?
In an immediate sense, you must make sure that your children are as safe as possible in the short term while you try to plan any legal routes to obtain a protective order. For instance, having an escape plan means being ready to leave the home you share with an abusive spouse or partner at a moment's notice. Proper planning by having clothes, toiletries, and other essentials ready to go at a moment's notice is a good place to start.
Having friends and family who can support and care for you during this time is also important. Informing the family of your situation and requesting a place for you to stay with them temporarily would seem to be an excellent idea. Otherwise, you should consider your specific circumstances and plan on doing what it takes to protect yourself and your children while developing a legal strategy to obtain a protective order and any other orders necessary for your family.
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 consultation six days a week in person, over the phone, and via video, where we can answer your questions and discuss how your family's circumstances may be impacted by the filing of a child custody or divorce case.