Protective Orders Archives - Heiman Law Firm

How Does Family Violence Affect a Family Law Case

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.

Important Factors in Cases Requesting Protective Orders

Nov 1, 2023 | Child Protective Services, Child Custody, Protective Orders

Introduction:

A protective order is a court order that can be entered by the court to protect a victim of domestic violence, assault (sexual or otherwise), abuse, stalking, and/or threats by a family member, household member, or (current or former) dating partner. We have written more about these cases here: Legal Protections for Family Violence (Part 1) and here Legal Protections Available for Family Violence. A review of those posts provides context for this one. Today, we will discuss some of the considerations that are pertinent to these types of cases.

Discussion:

Cases in which Family Violence has been alleged by one partner against another raise issues that are not usually present in other types of cases; issues such as (often) a lack of witnesses who might corroborate or dispute the allegations; sometimes, either a lack of physical evidence, or evidence which is ambiguous, such as whether physical marks, bruises, scratches, and so on are “defensive,” i.e. were inflicted by a person trying to protect themselves, or were caused by an event unrelated to an encounter between the parties; or, even whether they were self-inflicted. So, it is important for the person requesting the Protective Order, as well as the person who is alleged to have committed Family Violence, to focus on the details of the case. These cases are not ones “to wing,” or to do “off the cuff.”

As discussed in the first article linked above [“Legal Protections for Family Violence (Part 1)], Texas has provisions for Emergency Protective Orders, which are typically granted upon the arrest of a person for a Family Violence crime (such as Domestic Assault), and usually last for sixty-one (61) days. Those are granted without a hearing, based solely on the arrest documentation provided by the police department. Those relatively short-lived cases are not what this post is addressing. Instead, it’s the potentially much longer Protective Orders that can be granted by a District Court, after application and hearing, that we are focusing on today (these cases are discussed within the second article linked above, (“Legal Protections Available for Family Violence”).

The investigation of the legal case (for both parties) typically begins with the police report (“Incident Report”). In Texas, the Application for Protective Order will almost certainly contain a report from one or more law enforcement officer who investigated the incident. The details of this report are important, and if they don’t align with other case materials, such as medical reports, witness statements, photographs, audio/visual recordings (and so on), then those details are suspect, and can be questioned. A skilled lawyer, defending the person against whom the allegations are made, will point-out those discrepancies to the court, so as to cast doubt on the reported incident of Family Violence. And, a skilled lawyer prosecuting the case will address and explain those discrepancies (to the extent that can be done) before the defense lawyer has the opportunity to exploit them. Details, and explanations of variances within those details, are important.

Next, any witnesses who might either support or refute the case allegations should be approached, and, if possible, interviewed. If a witness refuses to speak with either lawyer, then that lawyer should be sure to provide evidence that the witness seemed to be favoring one party’s ability to investigate the case, instead of providing truthful information to everyone who sought it. This raises the issue of the impartiality of the witness.

How do the witness statements compare to the statement given by the person claiming to be the victim? If there are more than one witness, do they agree with one another on all important details? Do the witness statements conform with the officer’s report, and with the physical evidence, visual/audio recordings, photographs, etc.? Are there reasonable explanations for the variances? Is there evidence that witnesses discussed the events in question with one another, to arrive at a consensus narrative?

I next want to know whether the person making the claims in the case sought medical treatment. If so, was there a diagnosis made? Is there a medical report confirming that the wounds, marks, etc. are consistent (or inconsistent) with the patient history (what the patient told the health care provider)? When this information exists, it is often helpful to one side or the other. Consequently, both sides need to be aware of its existence.

Finally, I want to see how the parties communicated with one another running up to their important encounters, and whether they communicated afterwards. I expect to find a text string between the parties when I get one of these cases. What did they say to one another before, during, and after the event(s) in question? This is often quite helpful in determining what likely did, or did not, occur between them.

Protective Order cases can have a significant impact on both parties. And so, I encourage everyone involved in one to take it seriously. The court wants to grant a Protective Order when appropriate, but not grant one when not proper. Our job is to help the court see what is right in this particular case.

Convincing a Court to Lift a Residence Restriction on a Child (Part 1)

Feb 18, 2023 | Child Custody, Family Law, Protective Orders

The ability of a court to restrict the residences of children is one which varies under state law, from state to state. I am licensed to practice law in only the State of Texas, so my discussion will focus on Texas law. While there may be similarities to the laws of other states, you should check with an attorney licensed in the state in which your case sits, if that state is not Texas.

The issue of lifting, or modifying, a Residence Restriction, just like with other child custody and possession issues in Texas cases involving children, comes down to determining what is in the child’s best interest.[1]

The Texas Family Code[2] provides that it is the public policy of the State of Texas to:

Assure children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (my emphasis).
Provide a safe, stable, and nonviolent environment for the child; (my emphasis, again); and
Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Accordingly, our Supreme Court has held that that “(t)he Legislature’s expressed public policy considerations guide our analysis of the positive-improvement and best-interest standard in the relocation context, but no bright-line test can be formulated. Suits affecting the parent-child relationship are intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors.

In looking at whether the change to the Residence Restriction is in the child’s best interest, courts should consider, among other things:

(1) the reasons for and against the proposed move;

(2) the effect of that move on extended family relationships;

(3) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child;

(4) the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the noncustodial parent and the child;

(5) the nature of the child’s existing contact with both parents and the child’s age, community ties, and health and educational needs;

(6) whether there is a good-faith reason to request or oppose the move;

(7) the noncustodial parent’s ability to relocate;

(8) the degree of economic, emotional, and educational enhancement for the children and custodial parent; and

(9) the need for continuity and stability in custody arrangements.

Further, to the extent applicable, the best-interest factors used when establishing the initial or current order may be considered

Importantly, the controlling considerations for the court are those changes of conditions affecting the welfare of the child. The desires, acts, and claims of the respective parents are secondary considerations and material only as they bear upon the question of the best interest of the child.

So, for example, a change affecting the best interest of a child may be whether one or both parents are romantically involved with other individuals who are frequently around the child. If so, what is the nature of the relationship between the new romantic interest and the child? Has either parent developed a Substance Use Disorder? Have the work hours of a parent changed? Is there a new step-brother or sister in the picture? The list of possible changes is long. The idea is to focus on what is new or changed since the order imposing the Residence Restriction was entered. The court will not want to consider whether the Residence Restriction should have been imposed in the first place. That decision was made earlier. Our job will be to show that it is no longer in the child’s best interest.

I hope that this has given you some things to consider. Until next time, keep on loving your kiddos!

[1] TFC Section 153.002

[2] Section 153.00l(a)(l)

Protecting Children When a Parent Has a Substance Abuse Disorder

Jan 18, 2023 | Child Custody, Child Protective Services, Protective Orders

According to the National Institute of Mental Health, “A substance use disorder (SUD) is a mental disorder that affects a person’s brain and behavior, leading to a person’s inability to control their use of substances such as legal or illegal drugs, alcohol, or medications. Symptoms can range from moderate to severe, with addiction being the most severe form of SUDs.”[1] When a parent has a SUD, the parent-child dynamic is always affected to some degree.

In fact, research studies indicate that the children in these situations have an “ elevated risk that children of substance abusing parents face in general for poorer academic functioning; emotional, behavioral, and social problems; and an earlier onset of substance use, faster acceleration in substance use patterns, and higher rates of alcohol and drug use disorders.”[2]

So, obviously, this is an important issue in child custody cases, with or without an accompanying divorce. What are some of the ways that courts address these situations? That is the subject of today’ blog post.

Protecting children from the adverse effects discussed above is the primary goal of the courts in these situations. And, it should be the primary goal of both parents. The issue that typically arises first is a recognition of the problem by both parents. The parent having the SDU often will not recognize that his/her substance abuse is, indeed, a problem for the children. That parent may defensively opine that the “real problem” is with the other parent, who is “too uptight,” or who “just needs to relax (or chill).”

If that SUD remains unrecognized by that parent, then a court order will, likely, be required, to put into place protective measures. Those measures may include: limiting the possession (“visitation”) time of the parent abusing the substance(s). If, for example, that parent has a habit of drinking alcohol in excess during the evening and night hours, then his or her right to possession of the children may be limited to daytime hours. Or, if a parent smokes marijuana on weekends, then his or her possession rights may be limited to just weekday periods. Texas courts have broad authority, and indeed, an express duty, to enter orders that both protect children, and that are in the best interest of those children who come before them.

In the case where the parent having the SUD apparently addresses the problem, by refraining from using those substances previously abused by him or her, the other parent and the court may want to be able to confirm that the person is remaining clean and sober. And so, drug tests may be ordered.[3] If the substance being abused was alcohol, then the court may order that the parent with the problem subscribe to a service that provides a pocket-sized alcohol testing device. Times can be set for testing, such as: 30 minutes prior to the beginning of the parent’s possession period; 2 hours after the possession period begins; early the next morning (if the visit is overnight). Additionally, the right to random testing requests by the other parent may be ordered.

The goal of providing structure to these possession periods is not to “punish” a parent. Instead, it is to work towards providing a safer environment for children. After all, isn’t that the most important issue?

Until next time, keep on loving the kids in your life!

~David

[1] https://www.nimh.nih.gov/health/topics/substance-use-and-mental-health#:~:text=A%20substance%20use%20disorder%20(SUD,most%20severe%20form%20of%20SUDs.

[2] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3676900/

[3] Urine, hair, and nail tests are currently used in the jurisdictions where I practice law. This series of tests gives a broad picture of use, both recently and over the course of the past few months.

Having a Child Custody Case With Pending Criminal Charges Against You

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.

Legal Protections Available for Family Violence

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.

Legal Protections for Family Violence (Part 1)

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.