Battered Women: End the Violence (the Protective Order)

May 8th, 2011

The Texas Health and Human Services commission reported an estimated 982,916 Texas women were victims of domestic violence in the year 2006.  In Texas, more than 800 women were killed by their domestic partners between 1998 and 2005.  These statistics evidence the growing number of women in need of protection.

 

The legal system can offer some protection from family violence through the use of a Protective Order.  A Protective Order is a civil court order that is designed to restrain an abuser from continuing acts of violence and threatening, harassing, or stalking conduct.  All victims of family violence are eligible for a Protective Order.  A court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future.  A victim’s testimony about family violence may be enough to obtain a protective order, without other documents such as a police reports.

 

Family, in Texas, has a very broad definition.  Family can include relatives by blood or marriage, former spouses, parents of the same child (even if not married), foster parents or foster children, or any member or former member of a household (whether related by blood or marriage).  Any adult member of the family may file for a Protective Order to protect himself or herself or any other member of the applicant’s family or household, including children or the elderly.  The application may be obtained through the office of the county or district attorney, a private attorney or a legal aid program.

 

Protective orders can be important in ending or deterring family violence.  The purpose of the order is to: prevent future violence, identify appropriate and inappropriate behavior and reinforce beliefs that family violence is wrong.  A judge can create various conditions of a Protective Order.  In such order he can force a respondent to vacate a residence, pay child support, attend counseling, and/or not possess a firearm.  A Protective Order can require the abuser to stay away from the victim’s home, workplace, children, children’s school, and to keep a specific distance between the abuser and the victim.  It can order the abuser to stop communicating in a harassing or threatening manner.  Abusers who violate a protective order can be fined, arrested or both.  Keep in mind, no piece of paper can protect you from all incidents of violence; however, a Protective Order provides a good deterrent in most situations. 

 

If the court reviewing the application determines there is a real threat of family violence, the court may issue a temporary ex parte order without notice to the abuser which is valid for up to 20 days.  The court will then set a hearing date for the final protective order which will take place within the 20 day period.  At the final hearing, if the court so determines necessary, it may grant a final Protective Order that may be effective for up to two years.

 

Protective Orders are also available for people going through divorce.  In this case, the Protective Order must be filed in the same court where the divorce is pending and the pleadings in both matters must state that the other matter is pending.  It is important to remember that a Protective Order is not a custody determination and can not be used by one party to gain an advantage in a divorce proceeding.

 

Please contact your local law enforcement or domestic violence prevention agency immediately if you or someone you care about is a victim of family violence.  Even if you are not eligible for a Protective Order, there may be other options available.  For information on family violence contact the Texas Council on Family Violence, P.O. Box 161810, Austin, Texas 78716; Phone Number (512) 794-1133;

Website: http://www.tcfv.org.

 

The following is a safety planning list of things to get together if you are planning to leave:  If you have children, take them and take your pets if you can:

 

Identification for yourself and your children:

Birth certificates

Social security cards

Driver’s license

Photo identification or passport

Welfare identification

Green card

 

Important personal papers:

Marriage certificate

Divorce papers

Custody orders

Protective orders or restraining orders

Health insurance papers and medical cards

Medical records for family members

School records for children

Investment papers/records and account numbers

Work permits

Immigration papers

Rental agreements/lease or house deed

Car title, registration and insurance information

 

Funds:

Cash

Credit cards

ATM card

Checkbook and bank (deposit slips)

 

Keys:

House

Car

Safety deposit box

Post office box

 

Way to communicate:

Phone calling card

Cell phone (pay as you go phone is less traceable)

Address book

 

Medications:

At least 1 month’s supply of all medications

 

Way to get by:

Jewelry or small objects you can sell if you run out of money

or your account access gets cut off

 

Things to help you cope:

Pictures

Keepsakes

Children’s small toys and books

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The Uniform Interstate Family Support Act

July 17th, 2009

If a child and one of the child’s parents live in Texas, a child support order or paternity determination may be established without the assistance of another state. If the parents have already had sufficient contact with Texas, the Attorney General of Texas may be able to enter an order even if the parents do not currently reside here. If another state’s assistance is needed the Uniform Interstate Family Support Act enables Texas and other states to cooperate to establish a child support order.

The Uniform Interstate Family Support Act permits only one active support order for a case at a time. This cuts down on delays and confusion. If several orders exist, the Uniform Interstate Family Support Act has rules to determine which order should be followed (the “Controlling Order”).

Orders may be registered in different states for enforcement and modification purposes. Orders registered from another state are enforced as an order issued by the responding state.

States now have more power to collect payments from child support obligors who live in other states. The Uniform Interstate Family Support Act allows states to enforce their orders without the assistance of the state where the obligor lives. In many cases, a withholding order can be sent directly to an out-of-state non-custodial parent’s employer, requiring that child support be deducted from the parent’s wages.

The order can be registered by the other (responding) state for enforcement, but it cannot be changed by that state. The responding state has the authority to pursue collection using enforcement hearings, license suspension and incarceration of the delinquent non-custodial parent if necessary.

Changes in circumstances, such as job promotions, prolonged unemployment or disability, may affect the noncustodial parent’s payment status in the years following the establishment of the support order. Such changes may justify a modification in the support order.

The Uniform Interstate Family Support Act sets the ground rules for modification based on the state issuing the order, the states of residence of the parents and children, and the controlling order. If either of the parents or the child still lives in the state that issued the controlling order, any change in the support amount must occur in that state.

If all parties involved have left the state that issued the controlling order, that state may not be able to change the support amount. To change support, the order must be registered for modification in the state of residence of the parent who is not seeking the modification. If more than one state has issued an order, and none of the parties lives in those states, none of the orders is controlling.

All of the orders should be registered in the state that has jurisdiction over both parties. That state will calculate the amount of support to be paid and will issue a new controlling order.

The Uniform Interstate Family Support Act also allows both parents to agree in writing that a state where one parent resides may modify the order and take control of the case.

Once a state properly modifies another state’s order, the new amount of support is the amount to be collected by all states.

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Children in Distress: What to Do When You Need Emergency Relief

June 29th, 2009

The right to obtain physical possession of a child, the right to obtain temporary relief without prior notice to the other party, and the right to exclude a party from a residence are all special circumstances in which emergency relief may be requested. 

 

A writ of attachment is a court order requiring a child be produced at a particular location at a particular time.  It is used in situations where a party is entitled to possession of a child under a court order.  It may also be used when an emergency exists and a child is in imminent danger to his or her physical or emotional welfare. 

 

The remedy is extraordinary.  As such, specific facts must be alleged to command the court to issue the writ. The writ should be requested only when necessary to protect the welfare of the child.

 

Section 105.001 of the Texas Family Code provides the court may not render an order, except on a verified pleading or an affidavit which (1) attached the body of a child; (2) takes the child into the possession of the court or into the possession of a person designated by the court or (3) excludes a parent from possession of or access to a child.

 

Requests for writs of attachment are contained in petitions, motions and applications in suits affecting the parent child relationship and are filed ancillary to other requests.  The court must then make a determination as to whether the necessity exists for the writ and the applications are in proper order.

 

The court issues a writ commanding any sheriff or constable to attach the body of a child and deliver the child to a designated place.  That designated place is a location specified by the court who may command that the child be brought to the court or the court may provide a location where the child may be delivered by law enforcement.

 

Habeas corpus actions are brought when a party claiming a right to possession of a child is seeking the court’s help in getting the child physically turned over to that party.   The court shall compel return of the child to the person filing the habeas corpus only if the court finds that the filer is entitled to possession under the order.

 

If the court fails to compel return of the child, the court may issue temporary orders if a suit affecting the parent child relationship is pending.  The court may issues such temporary orders only if the suit affecting parent child relationship is pending and the temporary hearing is set at the same time as the habeas corpus hearing.  The court may then enter an order if a serious immediate question concerning the welfare of the child is shown at the temporary hearing. 

 

The court has defined “serious and immediate question” to mean imminent danger of physical or emotional harm that requires immediate action to protect the child.  If a right to possession is established, the exception to granting the writ occurs when a serious and immediate question concerning the welfare of the child exists.  If the writ is denied after the right to possession under a prior court order is established, the Texas Supreme Court requires the trial court issue a written temporary order containing a finding that there is a serious and immediate question concerning the child.

 

A serious and immediate question, although often alleged, is rarely found in habeas corpus actions.

 

A temporary order, when entered, should not be a final adjudication of custody.  At a minimum, the temporary order should contain the filer’s temporary rights to possession and should set a further hearing.

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