Thursday, 09 Sep 2010

COMMON FAMILY LAW TERMS

Temporary Orders

If the parties cannot agree as to how their property will be divided, their debts paid, how their property will be temporarily divided, their debts temporarily paid, and if they have children, how their children will be temporarily cared for, then they will need to have a hearing on temporary orders. Temporary Orders allow the court the opportunity to make orders that will exist during the time between the filing of the divorce suit and ending with the entry of the Final Decree of Divorce in their case. The issues to be determined at a temporary issue include:

[1] Temporary use of property;
[2] Temporary child support and spousal support;
[3] Temporary payment of debts;
[4] Temporary possession of children;
[5] Temporary visitation schedule; and
[6] Award of interim attorney's fees.

Permanent orders

The divorce decree or final SAPCR (Suit Affecting the Parent Child Relationship) is the final order signed in a case. The divorce decree divides property and debts, makes provisions for taxes, determines who will have custody of children, child support and visitation, and makes all other rulings in a case. The SAPCR order makes determinations concerning issues involving the children only and is used when the parents were not married or are not requesting divorce at the time, but have separated.

Generally, debts and property issues that are divided on final order will be considered permanent, whereas issues concerning children (visitation, conservatorship and child support) can be modified in the future.

Joint Custody

Conservatorship

Sole Managing Conservatorship vs. Joint Managing Conservatorship

Generally, it is presumed to be in the best interest of the child for the parents to be appointed Joint Managing Conservators, however, circumstances such as family violence warrants the consideration of Sole managing conservatorship. When the appointment of Petitioner and Respondent as joint managing conservators would not be in the best interest of the child, Petitioner, on final hearing, should be appointed sole managing conservator, with all the rights and duties of a parent sole managing conservator, and Respondent should be ordered to make payments for the support of the child and to provide medical child support in the manner specified by the Court.

Sole Managing Conservatorship:

Sole Managing Conservatorship
Right to primary possession (determines the residence of the child)
Right to receive child support
Right to make decisions

Possessory Conservator
Right to visitation
Duty to pay child support

*If the court finds that family violence has occurred then they must consider ordering Sole Managing Consevatorship.

Joint Managing Conservatorship

JMC With Primary Possession
Right to primary possession (determines the residence of the child)
Right to receive child support
Joint right to make decisions

JMC W/out Primary Possession
Duty to pay child support
Right to visitation
Joint right to make decisions

Standard of Change for Future Modification

The standard for modifying conservatorships (ie attempting to change custody) in the future is virtually the same.

If there is a request for modification within a year of the last order, the party petitioning the court must show that there has been a material or substantial change in circumstances of the child, that the child is in danger of physical or emotional harm or that the other party has left the child in the care of the party that does not have primary conservatorship.

Differences in Visitation and Child Support for "Sole" vs. "Joint"

There is no difference in the payment of child support or in the amount of visitation to be awarded between the different types of conservatorship. Joint Managing Conservatorship is presumed in the best interest of kids.

Child Support

An Obligor's (or Paying Parent's) obligation is to pay certain amounts of support for their child(ren) per the Texas Family Code as follows:

  1. Child Support

a. Set based upon a percentage of the Obligor's "net" earnings.
b. "Net" earnings are generally defined as "Gross" earnings less taxes and social security payments.
c. An Obligor will generally be ordered to pay based upon the number of children that he/she has with the receiving Parent, a percentage of the 1st $6000 net earnings as follows:

1 child - 20%
2 children - 25%
3 children - 30%
4 children - 35%
5 or more children - 40% +

  1. Multi-Family guidelines

A Parent who has children with different partners will have his/her child support reduced to different levels of support

  1. Health Insurance

An Obligor is generally required to maintain health insurance for his/her child(ren), however, both Parents will generally be required to pay ½ of any expenses NOT covered by health insurance (deductibles, etc)

  1. Education and other expenses

An Obligor is not required to pay education and other expenses (unless ordered by the Court). These expenses are borne by the Parent with primary possession of the child.

  1. Above Guideline support

a. If a child has special physical or mental needs, the court can order a Parent to pay above guideline child support.

Visitation and the Standard Possession Order

§ 153.311. Mutual Agreement or Specified Terms for Possession.

The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard order.

Family Violence

If family violence has been committed the court may consider whether the party committing the violence should have unsupervised visitation, supervised visitation or no visitation.

For example:

Respondent has a history or pattern of committing family violence during the two-year period preceding the date of filing of this suit. Petitioner requests the Court to deny Respondent access to the child. Alternatively, if the Court finds that awarding Respondent access to the child would not endanger the child's physical health or emotional welfare and would be in the best interest of the child, Petitioner requests that the Court render a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by Respondent, including but not limited to ordering that the periods of access be continuously supervised by an entity or person chosen by the Court, ordering that the exchange of possession of the child occur in a protective setting, ordering Respondent to refrain from the consumption of alcohol or a controlled substance within the twelve hours before or during the period of access to the child, and ordering Respondent to attend and complete a battering intervention and prevention program or, if such a program is not available, to complete a course of treatment with a mental health professional in accordance with section 153.010 of the Texas Family Code.

§ 153.137. Guidelines for the Possession of Child by Parent Named as Joint Managing Conservator.

The standard possession order provided by Subchapter F constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of the child in a suit.

§ 153.254. Child Less Than Three Years of Age.

(a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age.

(b) The court shall render a prospective order to take effect on the child's third birthday, which presumptively will be the standard possession order.

§ 153.256. Factors for Court to Consider.

In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider:

(1) the age, developmental status, circumstances, needs, and best interest of the child;

(2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and

(3) any other relevant factor.

§ 153.312. Parents Who Reside 100 Miles or Less Apart.

(a) If the possessory conservator resides 100 miles or less from the primary residence of the child, the possessory conservator shall have the right to possession of the child as follows:

(1) on weekends beginning at 6 p.m. on the first, third, and fifth Friday of each month and ending at 6 p.m. on the following Sunday or, at the possessory conservator's election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child's school is regularly dismissed and ending at 6 p.m. on the following Sunday; and

(2) on Thursdays of each week during the regular school term beginning at 6 p.m. and ending at 8 p.m., or, at the possessory conservator's election made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, beginning at the time the child's school is regularly dismissed and ending at the time the child's school resumes, unless the court finds that visitation under this subdivision is not in the best interest of the child.

(b) The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday periods of possession. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1) the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years;

(2) if a possessory conservator:

(A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or

(B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31;

(3) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

(4) if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days' written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child.

§ 153.313. Parents Who Reside Over 100 Miles Apart.

If the possessory conservator resides more than 100 miles from the residence of the child, the possessory conservator shall have the right to possession of the child as follows:

(1) either regular weekend possession beginning on the first, third, and fifth Friday as provided under the terms applicable to parents who reside 100 miles or less apart or not more than one weekend per month of the possessory conservator's choice beginning at 6 p.m. on the day school recesses for the weekend and ending at 6 p.m. on the day before school resumes after the weekend, provided that the possessory conservator gives the managing conservator 14 days' written or telephonic notice preceding a designated weekend, and provided that the possessory conservator elects an option for this alternative period of possession by written notice given to the managing conservator within 90 days after the parties begin to reside more than 100 miles apart, as applicable;

(2) each year beginning on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation; (3) if the possessory conservator:

(A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or

(B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 42 consecutive days beginning at 6 p.m. on June 15 and ending at 6 p.m. on July 27;

(4) if the managing conservator gives the possessory conservator written notice by April 15 of each year the managing conservator shall have possession of the child on one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (3), provided that if a period of possession by the possessory conservator exceeds 30 days, the managing conservator may have possession of the child under the terms of this subdivision on two nonconsecutive weekends during that time period, and further provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and

(5) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator may designate 21 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each, during which the possessory conservator may not have possession of the child, provided that the period or periods so designated do not interfere with the possessory conservator's period or periods of extended summer possession or with Father's Day if the possessory conservator is the father of the child.

§ 153.314. Holiday Possession Unaffected by Distance Parents Reside Apart.

The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 26, and the managing conservator shall have possession for the same period in odd-numbered years;

(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 26 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4) the parent not otherwise entitled under this standard order to present possession of a child on the child's birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father's Day and ending on Father's Day at 6 p.m., provided that, if he is not otherwise entitled under this standard order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m., provided that, if she is not otherwise entitled under this standard order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

§ 153.315. Weekend Possession Extended by Holiday.

(a) If a weekend period of possession of the possessory conservator coincides with a school holiday during the regular school term or with a federal, state, or local holiday during the summer months in which school is not in session, the weekend possession shall end at 6 p.m. on a Monday holiday or school holiday or shall begin at 6 p.m. Thursday for a Friday holiday or school holiday, as applicable.

(b) At the possessory conservator's election, made before or at the time of the rendition of the original or modification order, and as specified in the original or modification order, periods of possession extended by a holiday may begin at the time the child's school is regularly dismissed.

§ 153.316. General Terms and Conditions.

The court shall order the following general terms and conditions of possession of a child to apply without regard to the distance between the residence of a parent and the child: (1) the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of the possessory conservator's possession at the residence of the managing conservator;

(2) if the possessory conservator elects to begin a period of possession at the time the child's school is regularly dismissed, the managing conservator shall surrender the child to the possessory conservator at the beginning of each period of possession at the school in which the child is enrolled;

(3) the possessory conservator shall be ordered to do one of the following:

(A) the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator; or

(B) the possessory conservator shall return the child to the residence of the managing conservator at the end of each period of possession, except that the order shall provide that the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the residence of the possessory conservator if:

(i) at the time the original order or a modification of an order establishing terms and conditions of possession or access the possessory conservator and the managing conservator lived in the same county, the possessory conservator's county of residence remains the same after the rendition of the order, and the managing conservator's county of residence changes, effective on the date of the change of residence by the managing conservator; or

(ii) the possessory conservator and managing conservator lived in the same residence at any time during a six-month period preceding the date on which a suit for dissolution of the marriage was filed and the possessory conservator's county of residence remains the same and the managing conservator's county of residence changes after they no longer live in the same residence, effective on the date the order is rendered;

(4) if the possessory conservator elects to end a period of possession at the time the child's school resumes, the possessory conservator shall surrender the child to the managing conservator at the end of each period of possession at the school in which the child is enrolled;

(5) each conservator shall return with the child the personal effects that the child brought at the beginning of the period of possession;

(6) either parent may designate a competent adult to pick up and return the child, as applicable; a parent or a designated competent adult shall be present when the child is picked up or returned;

(7) a parent shall give notice to the person in possession of the child on each occasion that the parent will be unable to exercise that parent's right of possession for a specified period;

(8) written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due; and

(9) if a conservator's time of possession of a child ends at the time school resumes and for any reason the child is not or will not be returned to school, the conservator in possession of the child shall immediately notify the school and the other conservator that the child will not be or has not been returned to school.

Temporary Restraining Order and Permanent Injunction

A temporary restraining order is common in a Texas divorce. It will make provisions that will protect the parties and their property. These restraining orders can become a permanent injunction on final order that will usually contain only the provisions that prohibit harassment or harm to the party or child. It is called a mutual injunction when both parties are prohibited from committing certain acts toward each other.

Here are some of the things that the Texas family code allows for temporary restraining orders:

restraint against:

(1) intentionally communicating with your spouse in any way - telephone calls, writing, in person - in a vulgar, indecent, or obsene manner in order to harrass or annoy your spouse;

(2) theatening to take illegal action against your spouse or any other person in order to alarm or annoy your spouse;

(3) placing annoying anonymous telephone calls to your spouse;

(4) causing bodily harm to your spouse or a child of either party;

(5) threatening your spouse or a child of either party with bodily harm;

(6) destroying or concealing the marital assets;

(7) falsifying records relating to the marital assets;

(8) intentionally refusing to disclose the existence, amount, or location of marital assets;

(9) damaging or destroying the property of either party;

(10) tampering with the property of either party and causing loss of assets.

Even though a TRO or Injunction contains language to protect the party against physical harm; if there is a real danger of violence it is recommended that the party petition for a protective order. The difference is that the above is only enforceable by a civil court where if found in contempt, the violator can be fined and ordered to confinement in jail not to exceed six months.

Law enforcement agencies are notified of all protective orders issued in their area and they are required to maintain a list of those orders. If an offender violates the order and law enforcement is notified, officials will act to arrest the offender and seek to have charges filed. If a person violates the protective order in the presence of law enforcement, the offender must be arrested immediately. In cases involving the violation of a protective order, including an ex parte order, the offender may be punished for contempt of court by a fine of as much as $500 or up to six months in jail or both. In cases of violation, excluding ex parte orders, the offender may be punished by a fine of as much as $4,000 or jail for up to one year or both.

Protective Order

Law enforcement agencies are notified of all protective orders issued in their area and they are required to maintain a list of those orders. If an offender violates the order and law enforcement is notified, officials will act to arrest the offender and seek to have charges filed. If a person violates the protective order in the presence of law enforcement, the offender must be arrested immediately. In cases involving the violation of a protective order, including an ex parte order, the offender may be punished for contempt of court by a fine of as much as $500 or up to six months in jail or both. In cases of violation, excluding ex parte orders, the offender may be punished by a fine of as much as $4,000 or jail for up to one year or both.

What is a protective order?

A protective order is a civil court order that is designed to stop violent and harassing behavior and to protect you and your family members from an abuser. Abusers who violate certain parts of a protective order can be arrested.

What is the legal definition of family violence in Texas?

The Texas Family Code (Sec. 71.004) defines "family violence" as:

--any 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 or

--that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault....

Family violence also includes abuse by a member of a family or household toward a child of the family or household.

Actions taken to protect yourself or your children are not family violence if the court believes they are self-defense.

Under TX law, family violence also includes "dating violence." Dating violence is defined in the Texas Family Code (Section 71.0021) as:

-- any act by an individual that is against another individual with whom that person has or has had a dating relationship and

--that is intended to result in physical harm, bodily injury, assault or sexual assault

--or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault or sexual assault.

"Dating relationship” means:

--a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.

To determine if a dating relationship exists, the judge will consider:

1. the length of the relationship;
2. the nature of the relationship; and
3. the frequency and type of interaction between the persons involved in the relationship.

The purpose of a protective order is to prevent future assaults by the victim’s partner. The protective order will usually make it illegal for them to be near the victim’s home, workplace, and children's school.

A protective order may order the abuser to:

  • Stop committing acts of family or dating violence.
  • Stop communicating with the victim or a family member.
  • Stop threatening the victim or a family member.
  • Stay away from the victim’s home or place of employment.
  • Stay away from a school or day center that a child protected under the order attends.
  • Complete a battering intervention and prevention program.
  • Attend mandatory counseling.
  • Not remove the victim’s child from your possession or from the jurisdiction of the court or to allow you visitation with your child.
  • Stop any transfer or disposal of property.
  • Stop any other behavior designed to harass, annoy, abuse, or embarrass the victim.
  • Pay child or spousal support for a period up to two years.
  • Leave the victim’s home or other specified property (if certain conditions are met).
  • Turn over any firearms in his/her possession to law enforcement (unless the person is a peace officer actively engaged in employment a sworn, full-time paid employee of a state agency).
  • Perform any other acts that are necessary to prevent or reduce the likelihood of family or dating violence.

A judge can order the protective order to last for up to two years. Judges frequently order visitation in the protective order.

Who is eligible for a protective order ?

Victim’s can apply for a protective order if the abuser is one of the following:

  • A current or former spouse
  • A sibling (brother or sister)
  • A blood relative such as a parent
  • A relative by marriage (an in-law)
  • A person with whom you have a child in common
  • A current roommate
  • A former roommate
  • A foster parent
  • A foster child
  • A person who you are dating or have dated

A person who has a divorce pending is eligible for a protective order. The protective order must be filed in the court in which the divorce is pending.

A victim may also be able to get a protective order against someone who has sexually assaulted them even if they are not a family or household member (like a co-worker or neighbor).

Legal Definition of Family Violence

The Texas Family Code (Sec. 71.004) defines "family violence" as:

--any 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 or

--that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault....

Family violence also includes abuse by a member of a family or household toward a child of the family or household.

Actions taken to protect yourself or your children are not family violence if the court believes they are self-defense.

Under TX law, family violence also includes "dating violence." Dating violence is defined in the Texas Family Code (Section 71.0021) as:

-- any act by an individual that is against another individual with whom that person has or has had a dating relationship and

--that is intended to result in physical harm, bodily injury, assault or sexual assault

--or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault or sexual assault.

"Dating relationship” means:

--a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature.

To determine if a dating relationship exists, the judge will consider:

1. the length of the relationship;
2. the nature of the relationship; and
3. the frequency and type of interaction between the persons involved in the relationship.

Protective Order Definition

A protective order is a civil court order that is designed to stop violent and harassing behavior and to protect the victim and the victim’s family members from an abuser. Abusers who violate certain parts of a protective order can be arrested.

What it does

The purpose of a protective order is to prevent future assaults by the victim’s partner. The protective order will usually make it illegal for him to be near the victim, the victim’s children, the victim’s home, the victim’s workplace, and the victim’s children's school. Then the victim can call the police for help when he is where he is not supposed to be and the police can intervene before he assaults the victim or the victim’s children again.

A protective order may order the victim’s abuser to:

  • Stop committing acts of family or dating violence.
  • Stop communicating with the victim or a family member.
  • Stop threatening the victim or a family member.
  • Stay away from the victim’s home or place of employment.
  • Stay away from a school or day center that a child protected under the order attends.
  • Complete a battering intervention and prevention program.
  • Attend mandatory counseling.
  • Not remove the victim’s child from the victim’s possession or from the jurisdiction of the court or to allow the victim visitation with the victim’s child.
  • Stop any transfer or disposal of property.
  • Stop any other behavior designed to harass, annoy, abuse, or embarrass the victim.
  • Pay child or spousal support for a period up to two years.
  • Leave the victim’s home or other specified property (if certain conditions are met).
  • Turn over any firearms in his/her possession to law enforcement (unless the person is a peace officer actively engaged in employment a sworn, full-time paid employee of a state agency).
  • Perform any other acts that are necessary to prevent or reduce the likelihood of family or dating violence.

A judge can order the protective order to last for up to two years. Judges frequently order visitation in the protective order.

Eligibility

The victim can apply for a protective order if the victim’s abuser is one of the following:

  • A current or former spouse
  • A sibling (brother or sister)
  • A blood relative such as a parent
  • A relative by marriage (an in-law)
  • A person with whom the victim have a child in common
  • A current roommate
  • A former roommate
  • A foster parent
  • A foster child
  • A person who the victim are dating or have dated

A person who has a divorce pending is eligible for a protective order. The protective order must be filed in the court in which the divorce is pending.

The victim may also be able to get a protective order against someone who has sexually assaulted the victim even if they are not a family or household member (like a co-worker or neighbor).

Filing Eligibility

  1. An adult member of the family of household may file an application for a protective order for family violence committed against a member of the family or household.
  2. An adult in a dating relationship may file an application for a protective order for dating violence.
  3. Any adult may apply for a protective order to protect a child from family violence.

Note: Teenagers ARE eligible for protective orders. In some places in the state, someone might have to file on the teen's behalf. Check with the victim’s clerk of court.

The person who is the alleged victim of family violence is considered to be the “applicant.” The "respondent" is the victim’s abuser.

The victim should file for the order as soon after the incident has occurred as possible.

Cost

Nothing, a protective order is free. The victim cannot be charged a fee for filing, serving, or entering a protective order.

The court may order that the victim’s abuser pay any attorney fees (if applicable), and all other fees, charges, or expenses incurred in connection with the protective order.

Types of Protective Orders

In Texas there are three types of Orders of Protection:

  1. Temporary Ex Parte Order
  2. Permanent Protective Order
  3. Magistrate's Order of Emergency Protection (what most people call an Emergency Protective Order). These are called different things in different parts of the state. They are good for 31-61 days. If the victim partner has been arrested for a family violence assault, the victim must ask for this before he is released from jail. The victim can ask the arresting officer (or judge) to tell the victim’s partner what he is being charged with and to set the bond.

Proof Required

In order for the judge to grant a protective order, the victim will have to prove that it is more likely than not (more than 51%) that the following three things are true:

  1. the person who is abusing the victim is or was a member of the victim’s family or household or someone the victim have or are dating;
  2. family violence in the form of a physical assault or threat of physical assault has occurred; and
  3. another act of family violence is likely to occur again in the future.

Temporary Ex Parte Order

A Temporary Ex Parte Order is a court order designed to provide the victim and the victim’s family members with immediate protection from the victim’s abuser. In order to get a Permanent Protective Order, the victim need to have a full court hearing with the victim’s abuser present. A Temporary Ex Parte Order will protect the victim from the time the victim file for the Permanent Protective Order until the victim’s full court hearing. The victim may receive a Temporary Ex Parte Order without the victim’s abuser present.

The court can issue a Temporary Ex Parte Order if it decides that the information given in the victim’s application for a protective order presents a clear and present danger of family violence to either the victim or a family member.

A Temporary Ex Parte Order lasts for the period of time specified in the order, usually until the date of the victim’s full court hearing. In most places the court will schedule a date for a formal hearing no later than the 14th day after the date the application is filed and up to 21 days in larger venues.

Final Protective Order

A Permanent (or Final) Protective Order is a court order that is designed to stop violent and harassing behavior and to protect the victim and the victim’s family from the abuser.

A Permanent Protective Order is effective for the time period specified in the order up to a maximum of 2 years. If there is no time period specified in the order, then it expires on the second anniversary of the date the order was issued.

If the Respondent is still incarcerated on the date that the protective order is set to expire, then the expiration date is extended for one year from his date of release.

REMEMBER:

PROTECTIVE ORDERS ARE VERY HELPFUL IN FAMILY VIOLENCE SITUATIONS, HOWEVER, ALWAYS HAVE A SAFETY PLAN AND BE CAUTIOUS OF YOUR SURROUNDINGS AS A PROTECTIVE ORDER IS ONLY ONE TOOL IN PREVENTING VIOLENCE.