Family law involves a broad array of issues from divorce and property division, to child custody disputes. Unfortunately, domestic violence is a dangerous reality embedded within all types of family law cases. Family law attorneys are prepared to identify, assist, and prevent situations involving violence within the household.
Fortunately, there are laws in place to protect children, spouses, significant others, and other members of the family from the violent acts and threats of others. This blog post serves as a guide to help define domestic violence under that law and the legal options available to the victim and his or her family.
What is Family Violence?
There are provisions in place under the Texas Family Code that specifically protect against domestic violence. Family violence is 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.
Family violence need not result in actual physical harm. Family violence can also be a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault. Family violence does not include defensive measures taken to protect oneself.
Additionally, members of a household need not be related. A household simply refers to a unit of persons living together in the same home, without regard to whether they are related to each other. In other words, the Texas Family Code not only protects members of a family from domestic violence, but also unrelated individuals who reside together.
What is Dating Violence?
There are provisions in the Texas Family Code that protect against dating violence. Family violence can also include violence or threats that occur during the duration of a romantic relationship. Dating violence is an act committed against a victim with whom the actor has or has had a dating relationship that is intended to result in physical harm, bodily injury, assault, or sexual assault.
Similar to family violence, dating violence need not result in actual physical harm. The violence can include a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
A dating relationship is a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The Court will look at factors such as the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the persons involved in the relationship in determining whether a dating relationship exists.
If Domestic Violence Has Occurred, What Are My Legal Options?
An individual who has been the victim of family or dating violence should contact an attorney in order to establish his or her legal options. A family law attorney is well equipped to gather all the relevant information, assist with preservation and presentation of evidence, develop a proper case plan, and even help pursue criminal prosecution if necessary. Working with an attorney not only ensures that the client’s case is afforded the proper strategy to prevent future violence but gives the client an opportunity to seek further professional help.
The Protective Order
A protective order is issued by the court and orders the wrongdoer from committing certain acts against the applicant. Protective orders serve to protect members of the household from threats, physical violence, and sexual assault. An individual who has experienced family or dating violence may be entitled to a protective order. A Court must issue a protective order where family violence has occurred and is likely to occur in the future.
An Application for Protective Order
The proceeding for a protective order starts by filing an application with the court. An adult member of the family or household may file an application to protect the applicant or any other member of the family or household. Additionally, a member of a dating relationship has the ability to file an application. An application for a protective order may also be filed on behalf of a child in order to protect a child from family violence.
Relief Awarded to the Applicant
A protective order can require either party to abide by numerous provisions. A party can be prohibited having possession of a child. A party can be prohibited from transferring or damaging the property of the other party. An applicant of the protective order may even be awarded exclusive possession of his or her residence, while ordering the other party to vacate the home.
If the Court finds that there has been an act of family violence, there are additional provisions that the wrongdoer may be required to abide by. The wrongdoer can be ordered to complete battering intervention courses or even attend counseling by a licensed therapist or physician.
Additionally, the Court will make orders, which prohibit the wrongdoer from committing further family violence, threatening the victim, or communicating with the victim. A Court may even prohibit the wrongdoer from going near the victim or a child protected by the protective order. If necessary, a Court can order the wrongdoer from possessing a firearm.
Duration of the Protective Order
A protective order can stay in effect for up to two years. In extreme circumstances, a Court can order that the duration of the protective order exceed two years. The duration of the protective order can exceed two years where the wrongdoer was charged with or convicted of an act constituting a felony offense involving family violence. Other circumstances that would warrant a duration exceeding two years include a victim who suffered severe bodily injury or a situation in which two previous protective orders have been issued against the wrongdoer on behalf of the victim.
There are specific burdens that must be met in order to establish the appropriate duration of the protective order. It is important to seek professional advice in determining what a protective order should encompass and the appropriate duration.
Payment of Attorney’s Fees
A court may assess reasonable court costs and attorney’s fees against the party found to have committed family violence or a party against whom a protective order was issued. This is an important distinction that serves to assist the victim of domestic violence. Lack of sufficient financial resources to hire a private attorney should not deter a family member from seeking help. The Texas Family Code includes provisions that provide for how the attorney’s services and court costs will be paid for. The number one priority is to seek immediate protection for the victim and issue orders to prevent further harm.
Courts will Provide the Most Protection for the Victim
The overarching purpose of the protective order is to issue preventative measures for the protection of the individual from acts or threats of violence. When faced with issues regarding domestic violence, the Court will exercise a broad application of the laws as to effectuate its humanitarian and preventative purpose. Even when there are circumstances where no express threats have been conveyed, a Court can still find that a victim has been placed in fear.
In other words, although the application and burden requirements of a protective order can be complicated, the Court is armed and ready to protect the applicant or victim. It is important to seek professional advice from a family law attorney who can assist in organizing the evidence to prove the necessary requirements and burden in court.
Seeking Help is the First Step to Safety
If you or a member of your family has been a victim of domestic violence, our goal at The Skillern Firm is to assist you in providing the protection and healing you deserve. There are civil actions that can be taken, and our team at The Skillern Firm is prepared to advise the client with his or her best option. Although seeking professional help can be intimidating and fearful for those involved in domestic violence situations, legal action can be an influential way to deter and prevent further violence.
Attorneys at The Skillern Firm possess the necessary skills to provide the client with protective legal options in a highly confidential environment. Please contact The Skillern Firm to seek a resolution to your family law matter and the protection you deserve throughout the process.