Battered Women in Texas : End the Violence with a Protective Order
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 local legal 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
The Special Needs Child in Divorce
Divorce is a difficult time for all family members, but especially for the children. A child that has a serious illness or difficulty prior to the initiation of a divorce may have such problem accelerate during the divorce process. We call such child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.
Special Needs children are seriously impacted by the decisions made during a divorce. It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.
1. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.
The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.
Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
- Which parent is the most involved in the decision marking as pertains to the relevant issue?
- What are the competing theories of how to best treat the child?
- Current opinions from the child’s physician and /or therapist.
- What is the generally accepted treatment for the specific condition?
- What is the likelihood of each parent following the protocol selected by the court?
- How successful has the treatment been in the past?
- What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
- Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving clients in the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Parental Alienation Syndrome : Symptoms and Warnings
Parental Alienation Syndrome is the systematic denigration by one parent with the intent of alienating the child against the target parent. In most cases, the purpose of the alienation is to gain custody of the child and exclude involvement by the target parent. In other cases the alienator wants the target parent out of the way to start a new life, or the alienating parent wants more of the marital money and assets than he/she is entitled to and uses the child as a pawn. The alienating parent hates the target parent and the children become false weapons. These are just a few reasons Parental Alienation occurs in domestic disputes.
Parental Alienation Syndrome is common because it is an effective device for gaining custody of a child. Through systematic alienation, one parent may slowly brainwash a child against the other parent. The parent involved in such alienation behavior then may gain the misplaced loyalty of the child.
In a recent survey, one in five parents stated that their primary objective during the divorce was to make the experience as unpleasant as possible for the former spouse; despite the effects such attitudes and behavior have on the children.
Parental Alienation Syndrome is a form of emotional child abuse. Parents in hostile separations may suffer depression, anger and anxiety or aggression. The expression of these feelings results in withdrawing of love and communication which may extend to the children through the alienating parent. When the mother is the alienator, it is a mechanism employed to stop the father from having contact with his children; and can be described as the mother holding the children “hostages.” The children usually are afraid of the mother and obey her as a means of survival. The child may also be instilled with false memories of the father, coached and/or brainwashed. Parental Alienation Syndrome is recognized by the courts but is very difficult to define and in most cases requires bringing in County Social Services, Child Protective Services, and/or other professionals. Anyone claiming Parental Alienation Syndrome should look for family therapy as a constructive way forward. Other forms of abuse are physical, sexual, and neglect which are much easier to identify.
If the parental alienation has been successful and has influenced the child against the target parent, the observer will see symptoms of parental alienation syndrome. Many children appear healthy until asked about the target parent.
Warning signs of a Parental Alienation Syndrome Child:
- The child is a “parrot” of the alienating parent with the same delusional and irrational beliefs and consistently sides with this parent.
- The child develops serious hatred for the target parent and rejects a relationship with the target parent without any legitimate justification. The child sees nothing “good” about this parent and only wants to destroy the relationship.
- The child refuses to visit or spend time with the target parent.
- The child’s reasons for not wanting a relationship with the target parent are primarily based on what the alienating parent tells the child.
- The child feels no guilt about his/her behavior toward the target parent and will not forgive past indiscretions.
- The child’s hatred extends to the target parent’s extended family without any guilt or remorse.
Children having some of these symptoms may be experiencing Parental Alienation by one of his/her parents. Please contact an attorney and discuss your options on how to help this child. Formulate a plan to move forward. Do not give up your parental rights! Your child desperately needs and is entitled to your help!
The Innocent Bystander : Children of Divorce
Divorce, in many cases, has a life-altering impact on a child’s development and well-being. Given that one out of every two marriages ends in divorce, thousands of children are impacted each year. Divorce places enormous stress on a child trying to adjust to new feelings and rapidly changing situations in their lives. The resulting instability often leads to resentment towards the child’s parents and a difficulty acclimating to all the abrupt and immediate changes in a child’s life.
Children perceive divorce as a very traumatic event and are very concerned about their security. Many children internalize the dissolution and blame themselves for the breakup. They are scared that both parents may leave them.
Some very disturbing research on children and divorce has just been released by the Census Bureau Study, “The Marital Events of Americans: 2009”.
*1.5% of US children live in the home of a parent who divorced in the last year. The average age of the child is 9.8 yrs. old and the male/female ration is 1:1.
*64% of the children were White, non- Hispanic children, with the largest percentage living in the South (41%).
*Children living with a divorced parent are likely to be in a household below the poverty level (28%) and more likely to be living in a rented home (53%).
*Most children live in a mother headed households (73%). Because mothers have lower earning potential in the labor force, the family often lives below the poverty level.
*These children of divorce are often living with their parents’ unmarried partner (13%). Only 5% of the children are living in a household with a married couple.
Children of divorce often suffer from anxiety, depression and reduced self-esteem issues. Robert Hughes, associate professor in the Dept. of Human Development and Family Science, Ohio State University, found that children from divorce are more aggressive and more likely to get in to trouble with school authorities or police during adolescence. Also children from divorce are more vulnerable to becoming a victim of violence or become a perpetrator of violent acts on themselves and or others.
If you are considering divorce, carefully consider the impact on your children. To help children through this difficult time, parents must realize and accept that they are responsible for this situation and that their children often suffer as a result of the parent’s decision.
Parents should be very sensitive to the child’s emotional needs to ensure the best possible adjustment of his or her mental, physical, spiritual well-being towards a healthy, responsible adult. Remember! Your child is the “Innocent Bystander.”
Seek professional help if you child is struggling with the changes in his or her life. Your attorney knows a resource that may be available to address your child’s pressing needs.
Parental Child Abduction and Interstate Jurisdiction Cases
Parental child abduction is the offense of a Parent wrongfully removing, retaining, detaining or concealing their child from the other parent. This often occurs when parents separate or divorce proceedings begin. The abducting parent may consensually remove or retain the child to gain an advantage in pending child-custody proceedings or because the parent fears losing the child in the divorce proceeding. Many times the abducting parent may refuse to return a child at the end of an approved visit or may flee with the child to prevent the other parent from seeing the child or in fear of domestic abuse.
Many abducting parents try to take the child across state lines (Interstate Jurisdiction issues) or out of the country to make sure that the child will never be found by the other parent. They would rather live a fugitive than lose their child.
Are there any laws to stop this child abduction to another state or country? The Uniform Child Abduction Prevention Act (UCAPA) provides remedies with valuable enforceable tools in deterring both domestic and international abductions by parents and unethical people or agents on their behalf. This Act empowers courts to impose measures designed to prevent child abduction both before and after a court has entered a custody decree. Unfortunately, the UCAPA has only been enacted in eleven states (Alabama, Colorado, Florida, Louisiana, Kansas, Mississippi, Nebraska, Nevada, South Dakota, Tennessee, and Utah) and District of Columbia, since its inception.
In Texas Interference with child custody is a felony!
Texas currently follows the Texas Penal Code 25:03, Interference with Child Custody:
Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) A person commits an offense if the person takes or retains a child younger than 18 years of age:
(1) When the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;
(2) when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or
(3) Outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a) (2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.
(C-1) It is an affirmative defense to prosecution under Subsection (a) (3) that:
(1) The taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or
(2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor’s retention of the child was due only to circumstances beyond the actor’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.
(C-2) Subsection (a) (3) does not apply if, at the time of the offense, the person taking or retaining the child:
(1) Was entitled to possession of or access to the child; and
(2) Was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person.
(d) An offense under this section is a state jail felony: Minimum term: 180 days to Maximum Term of 2 years; fine up to $10,000.00
Hopefully, in the near future, more states will adopt the Uniform Child Abduction Prevention Act, but until then, if you think you have a problem with your ex trying to kidnap your child, find out what can be done in your state to stop this before it happens!
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
