Family Violence

The word “violence” reflects, in the common definition, “the use of force to harm someone or to damage something.” When that “someone” is you or a member of your family, it’s an extremely serious issue and is treated as such in Texas courts. Courts in the state of Texas deal with “family violence” cases in ways that may have a long-term significant impact on the family: on one hand, you have the level of protection that the court may order to safeguard the family from future violence and, on the other hand, you have the impact of the restriction that the court places upon the offending party. Family violence can destroy families, but the objective of the court is to protect the family – especially from further harm – and hopefully establish a pathway to healing.

Who Qualifies as “Family” in Family Violence Charges?

In the Texas Family Code, the definition of family is a bit more expansive than one would think. “Family” includes relatives related by blood (“consanguinity”) or by relationships established by marriage, including in-laws. Individuals who are former spouses of each other also fall into the definition of “family.” However, after divorce, the in-laws are no longer considered “family.” Individuals who are parents of the same child, regardless of marriage, are still part of a “family.” A foster child and a foster parent, regardless of whether they reside together, complete the Family Code’s definition of family.

What Makes a Violent Act a “Family Violence” Crime?

“Family violence” is defined 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.” It also includes an act that is a “threat that reasonably places the member [of the family or household] in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Defensive measures to protect oneself are not considered family violence. Family violence also includes “abuse” by a member of a family and/or household. The definition of “abuse” in the Family Code is broad and includes mental or emotional injury to a child, physical injury to a child, a failure to make reasonable efforts to prevent an abusive act by another person, and sexual conduct that is harmful to the child.

Dating Violence Now Qualifies as Family Violence

In 2001, the Texas Legislature enacted a law that includes “dating violence” in the same category as “family violence.” This looks to a situation where the parties are not family; rather, they are involved in a “dating relationship,” and the court looks to the length of that dating relationship, its nature, and the frequency and type of interaction.

Family Violence in Same-Sex Relationships

The definition of dating relationship is broad…broad enough to apply to both same- and opposite-sex relationships.

What Constitutes a Household in Relation to Family Violence?

Another term in the definition of family violence that has particular meaning is “household.” “Household” means “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” They don’t need to have the romantic attribute of a “dating relationship.” It could be a roommate, or something much more fluid like “it’s complicated.” The concept of “member of household” even includes a person who previously lived in the household. That is, they may have left the household based on the violent conduct and have no intention of returning to the household, but still may be in danger because of the violent perpetrator. 

Police and Protection from Violence

The above should reflect that the Texas Legislature has tried to protect a broad category of people from a fairly broad array of harm—especially children. The protections that the Family Code sets forth are in addition to consequences that may flow from criminal law action. However, if a person has been the victim of family violence, their first source of contact will likely be the police.

If you feel you may fall into any of the categories above and you have either suffered an act or been placed under threat of an act of family violence, you should consider contacting the police. Not only for the protection they may provide in the short term, but for the helpful evidence they may also provide should matters go before a court. A police officer’s testimony can be important evidence. Of course, if at all possible, retaining a family violence attorney experienced with violent cases like this is crucial, to make sure you are provided the full scope of legal protection you deserve.

What Will Your Attorney Do if There Has Been Family Violence?

The first step is to apply for a family violence protective order. An adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the applicant’s household from family violence. This application may be filed by a member of the family or “dating relationship” – this is the case regardless of whether that person is an adult or not.

Any adult – not necessarily one who is even a member of the family or household – may apply to protect a child from family violence. In addition, a prosecuting attorney (a district attorney) or the Department of Family and Protective Services (CPS) may apply on behalf of the victim of family violence. The person who is alleged to be the victim is considered the applicant.

Where Would You Apply for a Protective Order?

You may apply either in (1) the county where the applicant resides, (2) where the person alleged to have committed family violence resides, or (3) any county in which the family violence is alleged to have occurred.

File a Protective Order Without the Violent Perpetrator Present at Hearing

Normally in our legal system, one party may not present anything to the court without having the other party there – this is part of our “adversarial” legal system and our Constitutional right to “due process.” However, in the circumstance of family violence, because of the inherent emergent nature of it, an applicant may seek temporary relief in the form of a “temporary ex parte order.” “Ex parte” means “with only one party” before the court. This means that the court would not hold a hearing with both sides on the allegations in the application at that time; however, based on the information in the application, they may grant certain temporary protections. The application requires that you provide a detailed description of the facts and circumstances concerning the alleged family violence and why an immediate temporary protective order is necessary. This would be set forth in an affidavit that is sworn to by the applicant and notarized.

Temporary Protective Orders

To issue a temporary ex parte protective order, the affidavit must demonstrate that there is a “clear and present danger of family violence.” The temporary ex parte order may direct the respondent from doing certain things. One thing that the court may do with that temporary ex parte order is to exclude an alleged offender from the occupancy of a residence – it’s often described as a “kick-out” provision. A temporary ex parte order is only valid for a short period of time – not to exceed 20 days. However, it may be extended if a contested, evidentiary hearing on the matter cannot be heard by the court within the initial 20 days. Given the emergency tenor of family violence matters, courts are to hear these matters quickly.

The consequence of this short time frame is critical for your family violence charge attorney in two significant ways: (1) if you are the victim of the violence, it is important to get your facts and witnesses ready to support your position before the court in a relatively short amount of time; and (2) if you are responding to a protective order, that is, you’re alleged to have committed the family violence, your attorney needs that time to try to determine ways to defend the allegations or ways to address the issues. So much of the above deals with the circumstance of family violence from the perspective of the applicant, but as discussed in the paragraph above, it’s important to address this from the perspective of the party responding to the application – the person alleged to have committed the violence.

False Family Violence Allegations

Just as some people may do horrible, violent acts in a family environment, it also happens that people may make allegations that are either untrue or do not reach the level of defined family violence. The consequences of these accusations may have a dramatic and devastating impact on a person if they aren’t properly and vigorously defended. Consulting an attorney toward addressing the accusations head-on is imperative.

Example of a Parent Falsely Accused of Family Violence by a Third Party

Here’s an example of a common situation: Corporal punishment. Let’s say a parent is observed spanking a child by another parent at a school event. The parent observing the spanking believes that the spanking, corporal punishment, is abuse, and, therefore, from their perception “family violence.” As reflected above, “any adult may apply for a protective order to protect a child from family violence.” Thus, this good-intentioned observer adult may take the initiative to apply for a protective order on behalf of the child who they perceive is being abused. Based on the affidavit filed and the fact that at an ex parte hearing there is a significant chance that the parent would not have an opportunity to defend against the accusation, the court may grant some relief.

Here’s the problem in that situation: Despite a general tendency in our society today by some to say that corporal punishment as a means of disciplining children is “wrong,” parents are still entitled to some reasonable discretion as to appropriate corporal punishment of their children. You may spank your child in Texas. The parent spanking their child may have done nothing wrong. It’s simply how they best perceive to discipline their child. There should be no protective order in such a situation as this.

Vacate Temporary Protective Order: No Clear and Present Danger of Family Violence

What do you do to undo the temporary protective order placed against you in a situation similar to the one described above? You would move to vacate the temporary ex parte order because there is not a “clear and present danger of family violence.” If such a motion is filed, the court must set this for hearing as soon as possible. The court would then hear evidence why this is not family violence.

Proving Future Threats of Family Violence: A Victim’s Perspective

Let’s return to the perspective of the applicant for a moment. Let’s say a temporary ex parte order has been granted and a hearing is set. What happens next? At the hearing, the court will be presented with evidence, including testimony and any physical evidence that may be available, e.g., photographs or recordings of the incident. Then the court will make a determination based on whether:

  • Family violence has occurred
  • Family violence is likely to occur in the future

The second prong is a bit troubling for some: How does a court know whether family violence is likely to occur in the future? Courts, though endowed with many powers, lack the power of clairvoyance. However, the court may consider the pattern or history of past incidents. If the court finds that family violence occurred and is likely to occur in the future and, therefore, grants a protective order, what actually happens? What does a protective order do?

The consequences that flow from a protective order can entail some significant limitations on a person. It could mean that a person found to have committed family violence may have severe restrictions on the possession of a child. It may mean that they have significant limitations over their property. For example, the applicant may be granted exclusive possession of the home, and the other person may be ordered to vacate.

How a Protective Order Protects Victims of Family Violence

The first objective of the protective order is to prohibit a person found to have committed family violence from doing so again. To that end, there may be prohibited communication or contact with a person or persons. The court may subject the person to certain radius restrictions, e.g., they may not be able to go within 500 yards of the home or business of the applicant or the school or daycare of a child.

One thing that many Texans find a bit shocking is that if they are found to have committed family violence and are subject to a protective order, they will be prohibited from possession of a firearm, unless they are a peace officer (but a peace officer who is subject to a family violence protective order may not be a peace officer much longer). The consequences of a protective order are severe in that it limits what we hold as significant and fundamental Constitutional rights and freedoms: Speech, right to bear arms, freedom of travel (in the form of radius restrictions), and, most critically, limitations on a parent’s fundamental right to have custody or access to their child. A protective order can be a very big deal.

How Long Does a Protective Order Last?

The protective order is to last no more than two years. However, under certain circumstances, the court may extend that time. The typical situation where that occurs is where the respondent violates the protective order in some way. So violating a protective order may have very significant meaning. What’s more significant is that the person who violates a protective order may be punished for contempt of court by fine or by confinement in jail for as long as six months. Protective orders are never to be treated lightly. Courts take them seriously.

Our team of family violence lawyers at Orsinger, Nelson, Downing and Anderson can help you understand your rights and the consequences of protective orders, and help you develop a strategy for dealing with family violence lawsuits. Call today to schedule a case consultation, or request an appointment online.