If you are going through a situation involving domestic violence then it may feel to you like at every turn danger and fear are just around the corner. Most of us look to our homes as a place of refuge in a place of safety. To have someone turn your home into a place where you cannot even lay down your head without having to worry about your well-being is a pretty grotesque situation for you to be in. That the person doing this he's a family member can only make the violation of trust that much worse. From what you are experiencing now to an uncertain future, we need to be able to understand how and why to play you can protect yourself and your family.
What exactly are we talking about regarding domestic violence?
While you may be familiar with domestic violence and family violence to an extent we need to now discuss the possibility that the Inns and outs of this subject may be something that you were not aware of. Do threats of harm count as family violence or domestic violence? Is it necessary for you to have suffered the family violence at home for it to count as domestic violence? These are all worthwhile questions to ask and can help you to learn more about your circumstances by understanding additional information about this subject. Before we go any further into today's blog post I would like you to understand exactly what I mean by domestic violence or family violence.
Family violence can be defined as any act committed by one family or household member against another family or household member that is intended to cause physical harm, bodily injury, assault, or sexual assault. A threat her family violence can also reasonably place you or a member of your household in fear of physical harm, bodily injury assault, or sexual assault. As you can tell, even the threat of physical harm or violence counts in terms of family violence.
This definition may be able to help you to learn more about this subject and identify possible circumstances where are you might be a victim. Or, you may be engaging in behavior with a spouse, significant other, or family member that is on the verge of domestic or family violence. You may have a sincere belief that your behavior is not abusive in this way and this sort of definition may clue you in the fact that it is.
In what situations can an abuser be removed from your home?
Ultimately, the subject of dating violence and family violence only really matters in the context of keeping you, your children, and other household members safe from harm. The most direct way to do this is to seek to have your abusive family member removed from your home. The question remains how best to go about doing this. are there legal mechanisms that can be put into action to have someone remove from your house? What can you do to keep yourself in your family safe?
Briefly, a judge can consider a motion to exclude the abuser a family member from your home and allow you to say in the home by yourself without that person. He would be requesting that a court grant you exclusive possession of the home just as you would be in a divorce or child custody case. This can be done if your home is jointly owned or leased by you and your abuser, is owned or leased by you individually, or is owned or the Spire abuser, and they must support you or your child. This last scenario could be covered in circumstances where there is a court order in place or some other relationship that would obligate him or her to provide you with support on some level.
If you are asking that the abuser be excluded as part of a temporary protection order start at the beginning of a child custody or divorce case then you must prove several factors to be in place all at the same time both through an affidavit and through testimony. First, you must show that you currently live in a residence or have lived there four at least 30 days before you applied for protection.
Next, the abuser would have committed their acts of failure violence against you or a member of your household within the thirty days before you applied. Finally, there must be a clear and present danger that the abuser is likely to commit family violence again against you or a member of your household. Even if he filed a motion to have a hearing without the abuser are present the judge can postpone the hearing until the end of the day to allow him or her an opportunity to appear in court to present evidence
What sort of protection is available in a protective order?
The next question that would be reasonable to ask yourself regarding a protective order in a domestic or family violence scenario would be what types of protections are available to you as the family member or parent of an abuse victim. Probably the most significant protection available in a protective order that you can obtain through your family law case would be a requirement to stop committing acts of family violence or even any acts that are intended to harass you or a family member. These are similar types of protections available through temporary orders but can be obtained earlier than a temporary order in most cases.
Many times even after you leave the home and are in a place where your spouse or significant other cannot find you that does not stop him or her from interacting with you digitally or over the phone. Text messaging, harassing phone calls and threatening emails are not uncommon when an abusive person cannot get to you physically. A protective order can force your abuser to stop all communication with you or your family member either directly or through a third party. Likewise, if you're abuser is away from the house a protective order can bar him or her from coming close to your work, your home, or the school of your child.
Temporary custody and visitation terms can be created through the temporary restraining order, or protective order obtained as the result of a family law case. Many of the protections contained in a protective order have to do with the use of firearms and their inability to possess them. A judge is then supposed to suspend the abuser licensed to carry a handgun if he or she has been found to have committed the acts of family violence. Finally, there are general provisions included in most protective orders that can be included to facilitate any others goals for protection.
What are the types of protective orders available in Texas?
In Texas, three basic types of protective orders can be obtained depending upon the types of family violence that were in question. First is a temporary ex parte protective order. This is a court order that is designed to provide you with protection against the abuser as well as protection for your family against the abuser. These types of orders can be obtained without having the abuser present with you in court. You can talk with your attorney about filing one along with a petition for divorce or an initial filing in a child custody case.
A judge would need to believe that your abuser presents you with a clear and present danger where harm is likely to occur shortly to you or a family member. The information that you include in your protective order will likely be in affidavit form in a judge who would decide on whether or not the order should be granted based on this information. Typically, an ex parte temporary order will last for up to 20 days. The order can be extended for an additional 20 days if you ask for it or if the judge decides to extend it on his or her motion. This usually occurs in situations where your abuser has not yet been served with the document.
Next, permanent protective orders can be sought and obtained against abusers. A permanent protective order is typically effective for up to two years in duration. Please note that the judge can issue an order for longer than two years, however. If your abuser has committed an act that will be considered a felony offense involving family violence against you or a member of your household then the order can be extended for beyond two years. This is true even if the abuser was not charged or convicted of the offense.
Next, regardless of how long your protective order lasts after the order has been in effect for a year the abuser can file a motion to ask that the order be halted. A hearing would be held to determine whether or not there was a continued need for the order. In that circumstance, the recent behavior of your abusive family member will be examined since the time the protective order went into place. If the judge believes there is no need for the order to continue the judge could send the order earlier than the two-year time limit. Keep in mind that even if you're family member does not engage in bad behavior or otherwise violate the order that does not mean that this in and of itself would be reason enough for the order to be terminated.
To finally, there is a type of protective order called a magistrate's order for emergency protection. In the world of Texas family law, this order is more commonly referred to as an emergency protective order. As opposed to the other types of protective orders which are issued by a civil court judge this type of order would be issued by a Criminal Court after an abuser is arrested for having committed family violence.
One thing to bear in mind is that you do not have to be in the courtroom for an order of this sort to be issued by a judge. A judge can decide to issue a protective order of this sort when you file a motion whether or not you were in court or if one is filed by a prosecuting attorney, police officer, or bye you on behalf of your child. These orders are typically good for between one and two months. This can be extended out to up to three months if a deadly weapon was used in the Commission of a crime.
How do you get one of these orders in place?
This is the most important question for you or anyone else who is contemplating a protective order. All of the information that I just provided you with doesn't amount to much unless you can go into a courtroom or speak to an attorney and get the order that you need. Your well-being and the well-being of your children may be at stake. Additionally, it becomes less hypothetical and more real-life once you are the victim of this type of situation. Here are some practical steps for you to follow if you believe in protective order needs to be sought to protect you or a child.
Annapolis weekend different order for would need to be filed in the county or your abuser resides or in any county where the abuse occurred. On the other hand, if you currently have a child custody or divorce case that is ongoing in are interested in applying for protective order then you must file the protective order application in the court where that case is pending or in the court in the county in which you are currently residing.
In some circumstances and some counties, the county or District Attorney will not only help you file for a protective order but will also represent you in court. If a prosecutor will not file the case on your behalf you can do so using online protective order filing documents from websites such as texaslawhelp.org. Many times the county in which you file will require their paperwork in addition to the generalized forms found on websites like this. You should contact the county or district clerk before filing to find out if any additional forms are needed. Additionally, family violence programs in your area may provide free legal advice or even representation to obtain protective orders.
Specifically, any other types of steps that I mentioned in the closing paragraphs of today's blog post may vary from county to county. You would not want to follow the same process for Galveston County as you would for liberty and vice versa especially in those counties that required different filing processes. I want to provide you with this information as a general overview of what you should be doing but is not intended to work in every specific circumstance. If you have any specific questions about filing for a protective order in your county please reach out to one of the Law Office of Bryan Fagan’s licensed and experienced family law attorneys.
Once all the appropriate paperwork is filed, a judge will then review your petition. If you are determined to be in immediate danger then you may be able to have your temporary ex parte order approved. A permanent order can only be obtained after a court hearing where the abusive family member will have the chance to be present in the hearing and both of you will have a chance to present evidence and testimony regarding your motion for a permanent protective order.
To allow for your abuser to have an opportunity to be present turn you will have to provide him or her with service of process. The clerk of the court is going to need to issue a notice have an application for a protective order. That clerk then will arrange for the service of the notice to be provided to the abuser along with your petition. He or she will be made known aware of the fact that they've been accused of committing family violence. The abuser can then obtain an attorney friend themselves and prepare for the hearing date.
T these are the steps that you would take to obtain a temporary order for protection. However, to obtain a permanent protective order additional steps need to be followed. We will discuss those steps tomorrow.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
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 in person, over the phone, and video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how are your family circumstances may be impacted by the filing of a divorce or child custody case.