Legal Protections for Family Violence (Part 1)

Oct 23, 2017 | Child Custody, Child Protective Services, Family Law

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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How to Get Your Kids Back From CPS

Jan 23, 2017 | Child Protective Services, Family Law

So, CPS has removed your children from your home: is there any chance that you can get them back? The short answer to that question is “yes.” To start with, CPS is only authorized by law (Chapter 262 of the Texas Family Code) to remove children from their home when facts exist that would “satisfy a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child, or the child has been a victim of neglect or sexual abuse, and that continuation in the home would be contrary to the child’s welfare.

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If CPS makes that removal, and you disagree with their decision to do so, then you have the right to have a hearing in court (called an “Adversary Hearing”), no later than fourteen (14) days after that removal of your children occurred. And, during that proceeding, you or your lawyer has the right to cross-examine the witnesses called to testify by CPS, testify yourself, and present your own witnesses and other evidence to a Judge. At the end of that hearing, you will get your kids back unless CPS can convince the court that your children were in danger when the removal occurred; and, that they should not be immediately returned to your home. For a more detailed discussion of these topics, see “When can Texas CPS remove a child from your home?”

If you find yourself in the position of having your kids removed by CPS, then I truly hope the court finds that your kids should be returned to you after the hearing discussed above takes place. But, all is not lost even if your kids are not returned at that time. The court can Order their return at any time during the case.

When do courts Order that children who were removed from their home by CPS be returned to their parents? They do so when the parents of those children have demonstrated that they are able and willing to provide their children with a safe home. That means different things in different cases. For some parents, it means their staying clean and sober so that they can properly attend to their children. For others, it means eliminating the threat of domestic violence by attending and meaningfully participating in appropriate counseling. For some folks, it means becoming able to provide their children with the basic necessities of life, such as food, water, safe shelter, clothing, and so on. In each case where the initial removal is upheld by the court (as discussed above), the court will Order specific things that the parents will need to do in order to have their children returned to them.

Those things that parents must do are spelled-out clearly, but they are not usually easy for parents to do, since it involves their making one or more serious changes in how they live their lives. But, since the reward for doing those things is having their children returned to them, what reasonable parent would not try his or her hardest to do them?

Do you wonder what you should do if CPS is investigating you? Check-out this article for tips and suggestions.

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When can Texas CPS remove a child from your home?

Oct 23, 2016 | Child Custody, Child Protective Services, Family Law

Texas law (the Texas Family Code) provides that CPS shall investigate reports that a child has been abused or neglected. Those reports are typically made through either a phone call, or online ( ph. 1-800-252-5400 or www.txabusehotline.org).

The law goes on to state that the investigation shall be “prompt and thorough,” and may require the assistance of local law enforcement. And when that investigation reveals an “immediate danger” to the welfare of the child, then CPS may remove the child from his or her home, either with or without first obtaining a court order, depending on whether “there is …time” “consistent with the health and safety of (the) child” to first obtain a court order (such as a temporary restraining order).

The law provides that CPS could first file a lawsuit, serve the parents with those lawsuit papers, and set a hearing, all prior to removing a child. But, in my experience, that rarely happens. Instead, CPS does not typically initiate a case until and unless they determine that the situation is, in their opinion, so bad at the child’s home, that CPS needs to remove the child from that home. And, by that time, the CPS personnel involved in making that determination usually will decide that the need for removal is imminent.

In whichever way CPS removes a child from his or her parent, the court must have an “Adversary Hearing” within fourteen (14) days of when the child was taken into custody by CPS, unless the child has already been returned to his or her home by then. At that hearing, the child’s parents will be allowed the opportunity to dispute the charges being made by CPS, to cross-examine the witnesses called to testify by CPS, and to present their own testimony and any other relevant evidence that they may have.

At the conclusion of that hearing, the court shall order the return of the child “…unless the court finds that: 1. the child was in danger; 2. the child’s remaining in the home is contrary to the welfare of the child; 3. the urgent need for protection required the immediate removal of the child; 4. reasonable efforts…were made to eliminate or prevent the child’s removal; and, 5. 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.” (see Texas Family Code section 262.201). In other words, the court is not going to return children to parents whom the court finds were not parenting them safely.

If the continued removal of the child is approved by the court, then the court will make further orders at that time regarding the parents and child. If, however, the continued removal is not approved of by the court, then the case terminates.

When CPS gets involved in a case, it can be quite serious, and that involvement can dominate a family’s life for a year or more. These situations should be taken as the important events that they are.

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How to Avoid a Trial in Texas Family Court

Oct 23, 2014 | Child Custody, Family Law

Can you avoid a trial in a Family Law case? Most of us have seen movies and t.v. shows depicting contentious divorces or other Family Law cases. But is that the only way to resolve a disputed case of that type?

Thankfully, the answer is “no.” After more than two decades of “alternative dispute resolution” being encouraged by lawyers, the courts, and parties, it is now quite common to have even a contested case resolved without the contentiousness of a nasty court battle.

Of course, the court still must enter the required paperwork to give the resolution effect, but that can be done in a non-confrontational manner, after the parties have resolved their case.

So, what are these alternative dispute resolution procedures? Well, the simplest way to settle a case is just by talking and negotiating. Once the parties to a case have legal counsel to advise them on their options, and the likely outcomes if the case were to go to court, the parties can sometimes reach an agreement between themselves without any formal procedure being used. Of course, that is considerably more likely to occur if all parties are clean, sober, and mentally healthy. Narcissists and druggies are hard to have constructive conversations with.

Mediation
The first formal alternative dispute resolution which we will discuss today is mediation. Just like with the first method, the parties do communicate with one another and try to reach an agreement. Mediation is different, though, the communications are guided by a mediator—a person trained in helping the parties find middle ground in a case. Naturally, an attorney who has extensive experience trying divorces and other Family Law cases in the area where the case is pending can offer the parties a better, more in-depth analysis as to what the true middle ground in a particular case is.

Mediations usually occur after the parties have filed their lawsuit, gone through whatever preliminary actions are needed in court (such as seeking “Temporary Orders” covering things like child support, child possession, use of the residence during the divorce, and related matters), and have conducted “discovery,” such as exchanging relevant documents, and stating their individual legal contentions. Mediations typically last a full-day, and resolutions occur most of the time—it seems that the success percentage rates vary from one geographic area to another, but all reports are that a majority of mediated cases settle in all areas of the U.S.

Mediation has other advantages over trial: according to a 12-year report in The Journal of Consulting and Clinical Psychology (2001, Vol. 69, No.2, 323-332), when mediation is used to resolve child custody disputes, the parent not living primarily with the children stayed more involved with their children, even twelve years after the mediation occurred. Not only were they involved in making decisions for their children, but they also spent significantly more time with them than the similarly-situated parents who took their cases to a contested trial. Mediation is a good thing.

Collaborative Law
Collaborative Law cases are much different from litigated cases. Parties and their lawyers who choose to use Collaborative Law first tell the court (in a formal filing with the court) that they are choosing to use Collaborative Law, and that they commit that they will:

  • respectfully, honestly, and constructively communicate with each other with the goal of efficiently and economically settling the terms of the dissolution of the marriage
  • not make accusations or claims not based in fact
  • disclose all relevant information to one another, whether requested or not.
  • We agree that settlement meetings will be focused on economic, and possibly parenting, issues and the constructive resolution of those issues.
  • not to engage in unnecessary discussions of past events, especially blaming or criticizing discussions

Once that filing is made, the case proceeds much differently from a typical, litigated case.

Rather than filing motion with the court, conducting formal discovery, and having contested hearings in court, the parties and their legal counsel, instead, meet with one another to discuss “interests” rather than legal “rights.” Before each meeting, the parties agree to specific “homework” that they will do before the next meeting, such as having a formal appraisal done of the marital residence, meeting with teachers to assess the impact that a recent move has had a child’s school performance, gathering and sharing requested documents, or meeting with an agreed-upon “neutral,” such as a financial planner or CPA, a child counselor, or “coaches” who help the parties effectively work towards resolution.

Collaborative Law works when the parties are committed to resolving the process honorably and fairly, without any more fighting with one another. For obvious reasons, High Conflict People, such as Narcissists or people who have an Antisocial Personality Disorder (such as Psychopathy or Sociopathy), are not good candidates for Collaborative Law, and neither are people who are active drug abusers or practicing alcoholics.

Arbitration
Although arbitration is used more and more in commercial disputes, it is not as commonly used in Family Law cases—at least not in Texas.

With arbitration, the parties select an arbitrator, i.e. the person who will substitute for a Judge in the case. They also lay the ground rules about what discovery will occur, the time limits of the case, and even whether evidence which would not be admissible in a normal trial, will be allowed to be presented to the arbitrator.

The arbitrator runs the case, rules on any disputed pretrial matters, hears the evidence and argument, and issues a decision, similar to what a Judge would do at a formal trial.

The advantages to arbitration begin with choosing the arbitrator who will preside—rarely can the parties to a traditional case choose their Judge. Advantages also include efficiency, such as emailing documents to the arbitrator and having hearings occur on the telephone rather than in person, the ability to choose as much or as little time as desired for the case and trial to take. And the ability of the parties can agree to recess a hearing without having to convince the Judge presiding over a crowded docket to “continue” the case.

Today, we discussed three alternative dispute resolution procedures used in divorce or other contested Family Law cases. There are also hybrids of these procedures and new ones being developed as people continue to try to resolve these very personal disputes in a manner more civilized than outright war.

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