Sep 24, 2024 | Family Law, Blog, Family Violence, Protective Orders
We previously discussed Family Violence, and available Protective Orders within “Legal Protections for Family Violence (Part 1),” “Legal Protections Available for Family Violence,” (Part 2), and “Important Factors in Cases Requesting Protective Orders.” Those posts discuss the availability of those orders; issues that are important for the court to determine whether Family Violence has occurred; and, “Just what is Family Violence, anyway?” Today, we will discuss a different, but related subject: how does a finding of Family Violence affect a Family Law case?
The relationships between parents, with one another, as well as the relationships that those parents have with their children, was once thought to be a ‘family matter” that was beyond the scope of courts to address. The idea was that family members can and should address any issues that they have with one another. Obviously, that way of thinking has been replaced with one that seeks to protect children from being abused or neglected, themselves, and from growing up in homes where there is Domestic Violence occurring. The ways that our courts do that during Family Law litigation is the subject of today’s writing.
Initially, it is important to note that while each of the 50 states comprising the United States has laws protecting children in these circumstances, we will limit our discussions to Texas law today. For information on the laws of other jurisdictions, please consult with a properly licensed and experienced attorney for that jurisdiction.
Under Texas law, Family Law cases involving children (Suits Affecting the Parent-Child Relationship) begin with certain presumptions. These include presuming that parents should be appointed as Joint Managing Conservators of their children;[1] and, that each parent should be awarded a minimum of Standard Possession of his or her children[2] who are three years of age or older.[3] Those presumptions, however, do not apply when “credible evidence is presented of a history or pattern of” child neglect, child abuse, or abuse of the other parent.[4] In those instances, other presumptions apply.
Those other presumptions include restricting or limiting the access of the “violent parent” to the children;[5] and, appointing the “Non-Violent Parent” as the Sole Managing Conservator of the children.[6] The court may require that any possession of the children given to the “Violent Parent” “be continuously supervised by an entity or person chosen by the court.” And, the exchange of the children, instead of taking place at the children’s schools, “occur in a protective setting.” The court can, also, require that a parent “abstain from the consumption of alcohol or a controlled substance … within 12 hours prior to or during the period of access to the child.” The court has the power to, also, require that as a condition of having child possession, the Violent Parent ”complete a battering intervention and prevention program;” or, (if that is unavailable), complete a program with a mental health professional who has proper education, licensing, and training is domestic violence.
Texas law has presumption upholding the rights of parents to raise their children. If, however, it is shown that children are not safe with that parent, our courts have powerful tools to protect children from that parent.
Until next time, keep on loving those kiddos!
[1] TFC sec. 153.131
[2] TFC sec. 153.252
[3] TFC sec. 153.254
[4] TFC sec. 153.004 & 153.005
[5] Id.
[6] A Sole Managing Conservator makes most of the important parenting decisions, without needing to first obtain the agreement of the other parent, or anyone else, for that matter. This is similar to when fathers used to merely pay child support, and have weekend visits, while the Mother “raised” the children.
Jun 22, 2023 | Child Custody, Child Protective Services, Family Violence
Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.
Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making
Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.
Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection
Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?
Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.
These are the first few considerations. We will address more of them with the next post, so check back for more useful info!
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Dec 18, 2022 | Child Custody, Family Law, Family Violence, Protective Orders
In our practice, we see cases in which there is a pending criminal charge, such as for DWI, and a civil case, involving child custody issues. Sometimes, the criminal charge involves an alleged assault. Whenever we have one of these cases, we build our case on demonstrating the best interest of the child. It is too easy for the parents to focus on one another, as opposed to what the court truly cares about: what is best for the child or children of those parents. Our job is to make sure that the case is properly focused where it should be.
We have written several articles about representing the parent against whom criminal charges are not pending. Today, we write about representing the accused parent. There are complications involved in this representation. For example the accused parent’s criminal defense counsel will, almost certainly, advise against having that parent testify at any hearing or deposition, in order to preserve his or her 5th Amendment Right Against Self-Incrimination. The idea is to not provide any evidence which the prosecution might use in building their case.
Once they know what a criminal defendant is going to say, they can guide or highlight their presentation to account for that testimony. That makes it easier for the prosecution. The criminal defense attorney, of course, does not want us to assist the prosecution in that way. So, what we can do is present non-testimonial evidence, such as the lack of evidence on certain aspects of a case.
Examples of this are the lack of photographs, audio recordings, contemporary notes, or medical records supporting the allegations being made against the parent. If the other parent is the one making the allegations against our client, then his or her testimony can be obtained, thereby “freezing” their account of events. That parent can be asked about why s/he did or did not take certain actions, such a generating the evidence mentioned above. Also, our questioning can obtain the identity of any other witnesses known by that parent. Corroborating evidence can be asked about. Essentially, the hearing (such as for temporary orders) can be useful as a de facto criminal case deposition, that can assist the criminal defense attorney prepare their case.
Another purpose of the Family Law case hearing is to state scenarios to the witnesses for the prosecution, and ask them “if that wasn’t really what happened.” If and when they deny it, they can be questioned about that scenario, such as relating it to other evidence put forward in the case, to ascertain evidence that is consistent with the scenario that we put forth. Their responses can reveal weaknesses in the cases being made against our client by the prosecution and their opposing spouse.
And, our questions allow us to put forward a version of events for the court to consider, without our client having to testify. All witnesses can be asked about the loving relationship between our client and the children. Activities that they engage in together can be asked about. They can be asked to admit that the children would likely miss seeing our client, if possession and access were to be denied. The focus of the questioning that we want to leave with the court is how, the best interest of the child(ren) will be served only by allowing them to have a robust relationship with our client, through plenty of frequent possession and access, despite whatever, the accusations being made against our client by the prosecution.
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Jul 22, 2019 | Child Protective Services, Family Law, Family Violence
Child Protection Services (CPS) exists, and is often needed, to protect children from abuse or neglect. When it is not safe for a child to live with a parent, then we, as a society, need to have the ability to protect those children, by removing them from their homes, and placing them somewhere safe. That is our law. When only parent is the problem, however, the application of that law to the innocent parent can be unfair.
As background to the problem, Texas law provides that when CPS removes a child from a parent, either with or without a court order , the child’s parents are entitled to appear before the court to contest that removal (usually within 14 days of the removal). This proceeding is called an “Adversary Hearing.” If, after the Adversary hearing is conducted, the court upholds the removal of the child, then that court will typically order the parents to participate in, and complete, certain specific services related to the reason that the child was removed; like counseling, drug and alcohol assessments, psychological evaluations, random drug testing, parenting classes, and so on.
A problem can arise when the court upholds the removal of the child, but only one parent is responsible for that removal. Texas law allows the court to order both parents, including the “non-offending”(innocent) parent to complete services, like those discussed above. In my experience, that is what usually happens after an Adversary Hearing. Importantly, if either parent fails to complete those services, then the court could terminate that parent’s parental rights, even if that parent is innocent and was not at all responsible for the child’s unsafe environment. So, if, for example, Mom is using drugs with her boyfriend in the home with the children, and CPS receives a report about that circumstance, CPS can remove the children from Mom’s home; the court can uphold that removal, and order both Mom and Dad (who was not using drugs) to complete a list of services. If Dad is unable to work his schedule so that he can spend four (4) hours with a psychologist being evaluated; attend counseling, submit to random drug tests, and so on, then the court could terminate his rights to his kids; even though he is a non-offending (innocent) parent.
Because of this problem, there was a bill proposed in the Texas house of Representatives, during 2019: the Child Trauma Prevention Act (House Bill 3331), which would have addressed this situation. Unfortunately, that bill did not become law. Consequently, the problem described in this article still exists, as of the time of this writing. Anyone interested in working to address this situation should contact” their representatives in the Texas House of Representatives, and Texas Senate; the Texas Home School Coalition Association; or, the Texas Public Policy Foundation (TPPF).
1 In an emergency situation, CPS can remove children from an unsafe place before presenting evidence to a court to obtain an Order authorizing the removal. Otherwise, a court order is required prior to removal.
2 By finding that “there was a danger to the physical health or safety of the child…which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child” TFC 262.201 (g) (1); also, that “the urgent need for protection required the immediate removal of the child and reasonable efforts , consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child’s removal; and” TFC 262.201 (g) (2) “reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.” TFC 262.201 (g) (3).
3 The bill passed the House committee with no witnesses testifying against it. However, the bill died in the House Calendars Committee because an unknown member of the committee stalled the bill until it died on a deadline.
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Nov 23, 2017 | Family Law, Child Custody, Child Protective Services, Family Violence, Protective Orders
Last month, we started this conversation by discussing the Court Orders that are immediately available to victims of Family Violence; some, even before the Protective Order case has been filed. Those orders are designed to offer legal protection to victims right away, before there is time for proper notice and a hearing to occur. This is, obviously, very important, so all of that information is available here. With those immediate protections in place, we can now look to what happens next.
Starting the Protective Order Case
The case is initiated by the filing of an Application for Protective Order (by or for “the applicant’). Upon that filing, a Temporary Ex Parte Protective Order can be requested to offer immediate protection to the applicant; and, the Court is required to schedule an evidentiary hearing. In most Texas counties, that hearing must be set to occur within fourteen (14) days of the filing of the Application for Protective Order. In very large, or very rural counties, however, that hearing can be scheduled to occur as many as twenty (20) days after the Application is filed. Importantly, if obtained, the Temporary Ex Parte Protective Order should be in effect up to the date of the hearing.
The Protective Order Hearing
The Protective Order hearing is a trial. As such, the parties, and any other witnesses, can be called to provide testimony. That testimony will be about the allegations made within the Application for Protective Order filed by the applicant. Importantly, any witness called to testify at the hearing may be cross-examined by any other party to the case. And, usually, the witnesses will not be allowed to hear the testimony of the other witnesses, nor to discuss testimony with other witnesses, so that their respective testimonies will not be influenced by what they would hear other witnesses testify to at the hearing (at least, that will be the case if your lawyer makes a proper request to the court for sequestration of the witnesses).
Other Evidence Considered by the Court
In addition to witness testimony, relevant photographs, recordings, documents (such as medical, or police, reports), and other relevant evidence can be introduced as evidence (caution: each of these types of demonstrative evidence requires sufficient evidentiary predicate in order to be admissible over the objection of another party to the case, so it will be necessary to coordinate those foundations with your lawyer ahead of time). In addition to the evidence introduced by the parties, the Presiding Judge may ask questions to clarify what happened between the parties to the case.
The Court’s Judgment
After all of the evidence and argument has been presented, and any questions posed by the Judge have ben answered, the court will make findings about: the nature of the relationship that exists between the parties to the case; whether the Respondent committed “Family Violence;” and, if Family Violence did occur, is it likely to occur in the future? Based on all of those findings, the court will either grant the requested Protective Order, or deny the request for that Order.
Conclusion
Family Violence is a serious matter, and our courts treat allegations of Family Violence quite seriously. Whether you are a victim of such violence, or one who stands accused of committing Family Violence, it is important that you take the case seriously, since its outcome will have serious effects.
Divorce
When Family Violence occurs in a marriage, divorce often follows, or is threatened. If you feel that may be the case with you, then you should learn how to get prepared for a divorce case.
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Oct 23, 2017 | Family Law, Child Custody, Child Protective Services, Family Violence, Protective Orders
Sadly, Family Violence occurs far too often in Texas (as well as worldwide). According to the Texas Council on Family Violence, 158 women were killed by a male intimate partner in 2015; and, shockingly, 1 in 3 Texans will experience domestic violence in their lifetimes. If you are one of these victims, then please contact a helping organization such as Denton County Friends of the Family or the Department of Texas Health and Human Services’ Family Violence Program for 24-hour help, including emergency shelter services.
Temporary Emergency (Magistrate’s) Order
The purpose of the magistrate’s order is to prevent the defendant from inflicting further harm on the victim after an arrested person is released from confinement, but before a higher court has considered an application for a Protective Order. Under Texas law, a Magistrate can issue one of these emergency orders after a perpetrator has been arrested for certain crimes involving Family Violence, stalking, or sexual assault. The order can issue on the magistrate’s own motion or upon the request of the: • victim; • victim’s guardian; • a peace officer; or • the state’s attorney. If issued by the Magistrate, the order will last from 31-61 days, unless a weapon was used, in which case it can be in effect for 91 days. While those periods of time are short, they should be long enough to allow the victim to seek a longer-lasting Protective Order from a higher court.
These emergency Protective Orders have some advantages over the other available Protective Orders: for instance, a hearing is not required before this emergency order can issue; it does not require the defendant and the victim to have any specific kind of relationship with one another (and so, can be issued to protect the victim from a stranger); and, it is issued before the defendant is released from jail. With this type of Protective Order issued, the victim then has an opportunity to seek additional Protective Orders, one of which is discussed below, while the Magistrate’s Order is in effect; thus, providing the victim with some immediate protection.
Temporary Ex Parte Protective Order (issued by District Courts & some County Courts)
A victim may file an application seeking this type of order. This is usually done by an attorney retained by the victim, or by the local District Attorney’s Office. Unlike the emergency order discussed above, this order does not require that an arrest has been made.
The Application for Temporary Ex Parte Protective Order is sworn to (like an affidavit of fact), filed with the appropriate clerk, and then presented in person or by attorney to the Judge presiding over the court in which the application pends. Then, “If the court finds from the information contained in an application for a protective order that there is a clear and present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing, may enter a Temporary Ex Parte order for the protection of the applicant or any other member of the family or household of the applicant.” TFC sec. 83.001. That order “may direct a respondent to do or refrain from doing specified acts.” Ibid.
This type of order may, in certain circumstances, provide for the removal of the target from a residence. This order is good for only twenty (20) days, although it might be extended once for a period of time not to exceed twenty additional days. It is intended to offer protection to the applicant until an adversarial hearing can be had by the court during that twenty-day period of time. The adversarial hearing is one in which the target of the Temporary Ex Parte Protective Order is given proper notice of the hearing, and is allowed to oppose the entry of a longer Protective Order, by testifying, calling witnesses, and entering other evidence and argument. This hearing will be discussed in Part 2 of this subject, in a later blog post.
For too long, the plague of Family Violence has not been properly addressed by society. It is now treated by law enforcement and our judicial system as the criminal behavior that it truly is. As more victims come forward for protection and justice, this trend should continue. The days of remaining silent to this scourge are gone.
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