I think it’s safe to say that most of the blog posts on this website regarding protective orders approach this subject from the perspective of the person who is applying for the protective order. This makes sense because protective orders are a means by which a person who has suffered harm because of physical or emotional violence can try and protect themselves and their family soon. A protective order allows a person in that position to be able to seek formal assistance from the law to protect themselves and their family.
Protective orders are an area of the law where the worlds of civil in criminal law come together. If you are in a position where you believe that someone is going to seek a protective order against you then you have every right in the world to be able to try and prevent this protective order from being granted. Whether it is called a protective order or a restraining order these court documents are only valid for a limited amount of time. After a certain. They will no longer be effective and will expire. That is why people attend protective order hearings where these orders can be extended in length and would be valid for more than just a few weeks.
What happens when your spouse or partner is alleging that you physically abused him or her? If this is not true, then you must consider what you can do to argue against these allegations. Even if the circumstances are muddied as far as who did what and when there can be significant consequences for you if a protective order is granted on behalf of your spouse or partner. This can be especially true if you have children and are trying to fight for custody of them in a divorce or child custody case in the future. Evidence of a protective order being granted certainly would not help you in this regard.
What are the types of protective orders?
There are three types of protective orders in Texas. You need to know that each one of these orders has a different duration. That they are valid for. It is standard that a temporary order will initially be granted to someone who seeks a protective order and then subsequent work will be necessary to extend that protective order into one that is permanent. Even the permanent protective orders do not last forever, however. Let’s walk through what the different types of protective orders are and what that can mean for you in your circumstances.
The first type of protective order that we need to discuss is a temporary ex parte order. This type of order can be sought from a judge without even having you present period your spouse or partner could hire a lawyer, file a petition for protective order and then obtain a hearing before a judge without even having to give you notice of the hearing occurring. this allows your partner to present evidence to substantiate why the protective order has been requested. Typically, these hearings are granted for persons who believe that they have a clear and present danger of family violence. Most commonly these hearings are obtained after your spouse or partner can show that domestic violence or abuse occurred in the home recently.
If a judge grants the request for a temporary ex parte order, then this can last for up to 20 days. If it becomes necessary, a judge can extend that temporary order. I think the biggest takeaway for you or anyone else who is potentially having to defend themselves against allegations of family or domestic violence is that this hearing is one where you will likely become aware of it only after it occurs. In most contexts, you will need to be able to be provided with notice of a hearing that involves something where you have the standing to appear. For example, if you were involved in a child custody case then your partner cannot just hold a hearing regarding some issue related to your kids without first providing you with sufficient notice to prepare for the hearing and ultimately attend the hearing.
This is not the case in an ex parte hearing. The thought is that the risk to your spouse or partner is so significant that anytime last needing to give you notice of a hearing could potentially put your spouse or partner in a position where their health and well-being would be put at risk. Ultimately, these temporary ex parte orders are so limited in duration that you will likely be able to approach the judge with your evidence in a second hearing as little as two weeks after this initial hearing. You can use this time to prepare your case, hire an attorney if you are interested in doing that and generally get ready for the final protective orders hearing.
A final protective order is a protective order that gives applicants the longest period of sustained protection under the law in Texas. The standard that a family court will typically look towards is whether violence has occurred in the house previously and is likely to happen again in the future. If so, then the court will make it determine that a protective order is justified, and one will be granted. In most cases, a protective order lasts 2 years period this can be a relevant consideration especially if you are currently involved in a family law case. Not being able to come within a certain amount of feet of your spouse’s place of business, residence, or that of your children can make it difficult to have visitation and possession with the kids and generally live your life.
Protective orders can be extended in time depending upon the injuries suffered by the person who has obtained the protective order against you. If the injuries suffered are significant then extensions to the usual 2-year time can be obtained. additionally, if you have had multiple protective orders obtained against you then you can expect that this will weigh heavily on a judge in terms of how long or how many extensions to provide on the protective order in the current situation. Even if you choose not to attend the protective orders hearing you must be provided with notice that a protective order has been sought against you and ultimately obtained.
Finally, a magistrate’s emergency order can be obtained against you if you were arrested for family violence, stalking, or sexual assault. An emergency order of this type will last for at least 31 days but no longer than 91 days. This emergency order can be obtained against you without ever providing you with notice.
How can you defend yourself would a protective order is sought against you?
ultimately, this is why you are here today. All the information in the world about protective orders is not relevant to you unless you can use that information to ultimately protect yourself and put yourself in a position where you can defend yourself against allegations that may not be accurate. I think anyone involved in the world of criminal or family law would agree that judges oftentimes air on the side of caution. To put it bluntly, most judges would rather issue a protective order than run the risk of abuse happening even if the situation certainly did not merit it. With that said, if you are being accused of having abused your spouse or partner that there are some practical pieces of advice that you could obtain from an experienced family law attorney.
For one, much of the time a misunderstanding can lead to added protective order being sought. What your spouse or partner may take as abusive or threatening language or behavior may be nothing of the sort. The thing is when you and your spouse have issues with communication then it is easier to find yourself in a position where little things are misconstrued or taken way out of context period to that extent, you can expect misunderstandings to be a part of some but not all of the protective order cases.
Another circumstance that could lead to protective orders being sought or about child custody cases. for example, let’s suppose that your spouse is filed for divorce from you, and you know that she wants to be able to maintain a primary conservatorship over your kids. However, you believe that you have a good case to ask her primary conservatorships as well and as a result, you would like to be able to request the same rights and duties about your children that she would like. This would be a circumstance ripe for a protective order being sought.
As we have already talked about evidence of a protective order being obtained or even sought against you can be incredibly prejudicial for your case. Not only does it make it difficult for you to have normal possession of your children during your divorce case, assuming the protective order is granted, but future possession of your children will have to revolve around the protective order as well. So, your spouse may choose to exaggerate a prior incident involving you or outright make things up to get you on the defensive.
One thing that you can do as the respondent of the order is to request a motion to dissolve or a motion to modify the order. A motion to dissolve the order would eliminate the order and do away with any legal significance that it might have a period, on the other hand, the motion to modify the order would take certain terms and change them based on a substantial change in circumstances. Something may have been different at the beginning of the time when the protective order was sought versus how it is now. In that case, you could at least ask a court to modify certain arrangements or orders contained in the original protective order to accommodate those changes in circumstances.
To have the order dissolved completely would be a situation where you would believe that the order was issued unfairly. To do this, you will need to file a motion in court and then be assigned a court date in front of a judge. Once you have that court date and time you will provide notice to your Co-parent or spouse so that he or she may attend the hearing as well. Many times, if you believe an order is too general or too strict this may be a circumstance where modifying the order is more appropriate than having it dissolved. A completely baseless protective order that was obtained against you is one thing but not being able to exercise possession of your children is another.
How important is having legal representation when defending yourself from a protective order request?
We have already seen how detrimental and protective order being obtained against you can be in terms of a future family law case. Division of your community estate, time with your kids, and conservatorships rights and duties will largely depend upon your being able to act in the best interests of your children as well as your role in the breakup of the marriage. If a judge finds that you or a threat to the safety of your family then you will being a bad position when it comes to either property subjects or subjects related to your kids. For that reason, you must seriously consider if having an experienced family law attorney by your side could provide you with some degree of clarity when it comes to figuring out what to do. Will having an attorney provide you with enough benefit to justify the time and money that goes into the hiring of a lawyer?
Cases involving domestic abuse and protective orders are oftentimes contentious but once sided in the courtroom. Judges are sympathetic to allegations made primarily by women against male partners involving domestic abuse or violence. Every so often you will read newspaper articles or see stories on the television news about a judge who did not grant a protective order and then that respondent went out and committed terrible acts of violence. Since it is only human nature to not want to wind up on the news in that way many judges grant protective orders when there may be no basis for their having done so.
With this backdrop, it is difficult to be able to position yourself well to defend yourself against a potential allegation of domestic violence. When a protective order is sought against you ultimately the evidence can boil down to the said, or she said scenario. All the while there will be pressure on the judge to grant their requests for a protective order if for no other reason to be on this safe side of things. how do you position yourself to present a viable case to counteract the allegations of abuse set forth by your partner or spouse?
Probably the most effective way to do so is to work with an experienced family law attorney. When it comes to being able to mount a defense in a serious situation like this it takes both planning and knowledge. From the planning standpoint, answering the petition for protective order and collecting evidence is an important step in this process. Bear in mind that just because someone has filed for a protective order against you does not mean you will be able to devote all your attention to this one subject.
When you have other concerns in your life such as your children, your work, and other activities it is unrealistic to think that you can put all those subjects on the back burner and devote your attention to a family law case. Therefore having, an attorney can be such an advantage. Your attorney can prepare your case and provide you with a leg up when it comes to defending yourself against allegations of abuse. Depending upon your specific circumstances you can present yourself much more favorably when it comes to a situation like this when you have an attorney.
An opportunity to have a free-of-charge consultation with an experienced family law attorney can be just what you need when it comes to positioning yourself to adequately prepare for what can be a difficult and stressful period in your life. Having an attorney does not guarantee you anything but does provide you with some degree of confidence when it comes to being adequately prepared for a difficult case that lies ahead.
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 consultation six days a week in person, over the phone, and via video. These consultations are available six days a week in person, over the phone, and via video. If you have any questions about the world of Texas family law where our curious about how these issues may impact your family, please do not hesitate to contact us today.
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