Protective Orders

Protective Orders are very serious remedies that should be considered only as a last resort to protect a victim of family or dating violence. Unfortunately, Protective Orders are often misunderstood in their consequences, purposes, uses and misuses. Indeed, Protective Orders reflect one of the few areas of Texas Family Law where the law probably should be changed to better protect both alleged perpetrators and alleged victims. Whether you are a victim or an alleged perpetrator of family violence, you should seriously discuss with your attorney whether a Protective Order is warranted in your case, and what defenses or alternatives might exist in your case.

Television and the media perpetuate many myths about Protective Orders through stories of obsessive celebrity stalkers or graphic tales of unusual and abhorrent domestic violence. Although there is some truth to these myths, the following discussion clarifies these myths and discusses the actual standards and general considerations under Texas law.

 

Myth # 1: Protective Orders Never Work

The most common myth perpetuated by the media is that Protective Orders do not stop stalkers and other violent perpetrators of domestic violence, and therefore do not work. Such fringe cases of unbridled, nefarious obsession do exist, but they do not reflect the vast majority of Protective Order cases. Due to the unique psychology involved in domestic and family violence, most Protective Order cases involve aberrant behavior that the perpetrator would never contemplate in public. The safety and privacy of the home that ironically makes domestic violence so horrible for the victim also provides a sort of enabling psychological veil in many perpetrator's minds. Once the family violence becomes not only public, but also a matter of a court order, most perpetrators tend to realize the severity of their actions and not repeat their actions. Indeed, the rigors and embarrassment of the Protective Order proceeding often has more to do with opening alleged perpetrators' eyes to the severity and wrongfulness of their actions than the terms of the actual court order, itself.

Myth #2: Protective Orders Always Work

Unfortunately, the pervasive myth discussed above does have its foundation in fact. Although a Protective Order can shock a perpetrator into compliance, the unfortunate corollary is that Protective Orders sometimes provide a false sense of assurance to victims of family violence. Unfortunately, if a perpetrator of abhorrent family violence is determined to continue to commit family violence, then a Protective Order will not do much to deter such a person. Victims of these criminals should discuss alternatives to a Protective Order with their attorney, including but not limited to pursuing criminal charges to completely remove such perpetrators from society, not just obtain a paper order that limits their interactions with a particular victim. Protective Orders do establish potential criminal penalties to impress upon alleged perpetrators the severity and inappropriateness of their abusive behavior. Protective Orders also give perpetrators one last chance to remain out of jail. However, they are just paper orders in the end, and they will not deter someone who does not respect the law or care about the consequences.

Myth #3: Protective Orders are Difficult to Obtain

Although the legal, procedural obstacles are complicated enough to require a victim of family violence to obtain an attorney or seek assistance from the County Attorney's Office, Protective Orders ultimately are fairly easy to obtain.

First, judges tend to err on the side of caution and grant protective orders fairly leniently. Some judges have unfortunately denied protective orders and then seen the perpetrator extract even more viscous revenge against the victim, which understandably makes such judges very reluctant to thereafter deny future requests for protective orders. Even if it has not happened to a judge, all judges have heard about such horror stories and often err of the side of caution to grant protective orders because once a breakup or divorce gets to the point of requesting a Protective Order, the alleged perpetrator usually has no business contacting or interacting with the alleged victim, anyway.

Second, the standards for granting a protective order are not so stringent as many people think. There are only two basic elements necessary to obtain a Protective Order under Texas Law: 1) Family Violence occurred; and 2) Family Violence is likely to occur again. "Family Violence" is broadly defined in the Texas Family Code as any act intended to result in physical harm, bodily injury, assault, or sexual assault to a family member or even a mere threat that reasonably places a family member in fear of imminent physical harm, bodily injury, assault, or sexual assault. Consequently, a mere threat under heightened emotions that would place a reasonable person in fear of assault (even a push) could provide grounds for obtaining a Protective Order, regardless of whether the person "meant it" or not. (What matters is the reasonable impression the threat made on the other person, not what the person who made the threat actually intended).

"Family member" is also broadly defined to include anyone within the first degree of consanguinity regardless of where they reside--immediate family members, not cousins--as well as any non-related person living in the same dwelling (namely, roommates or housemates). The same standards and prohibitions also apply to any person with whom the Defendant holds a "dating relationship."

Because of the broad definition of family violence, most protective order cases do not turn on whether family violence occurred (again, an insincere, hollow threat to push someone can suffice), but on the second element: whether it is likely to occur again.

Many attorneys and legal commentators have noted that the standards for a Protective Order in Texas are too easily met and should be defined more stringently. These commentators note that the ease of obtaining a protective order can often heighten the emotions and contentiousness of already highly-emotional and highly-contentious divorces or custody battles. Such commentators also note that the minimal standards have a tendency to minimize and trivialize the severity of extreme cases that truly do need protective orders: a sort of "never cry wolf" effect. Finally, because of the far-reaching effect on child custody cases and other factors (discussed below), some commentators have argued that the minimal standards encourage some parties to falsely pursue a protective order as a pure legal gambit to gain a tactical advantage in a custody dispute. However, until the law changes, the standards will remain this easy to prove.

Myth #4: A Protective Order Is Not a Big Deal So Long As The Alleged Perpetrator Does Not Violate It.

Many alleged perpetrators are convinced to stipulate to protective orders under the guise of "if you don't plan to violate it, then you have nothing to lose by agreeing to it." However, the consequences of entering a Protective Order against a party are rather significant and can have far-reaching effects beyond the personal relationship between the alleged perpetrator and alleged victim: most particularly on parent-child relationships. Most significantly, the finding of family violence necessary to obtain a Protective Order provide grounds for limiting conservatorship, possession, and access to a child of an alleged perpetrator of family violence. As a result, we generally do not advise any alleged perpetrator of family violence to stipulate to a Protective Order, even when they honestly want nothing to do with the alleged victim, will not go near the alleged victim, anyway, and would not violate the terms of the proposed protective order even if it were not entered.

More specifically, as discussed on the page regarding child custody and conservatorship in Texas, Texas Law presumes that both parents should be appointed joint managing conservators of a child. However, a finding of family violence necessary to obtain a Protective Order provides one of only two grounds under the Texas Family Code for rebutting that presumption.

Additionally, the Standard Possession Order in Texas provides a default possession ("visitation") schedule for parents, which generally allow even a "non-custodial" parent rather liberal and meaningful possession of the child. However, a finding of family violence allows a court to not only deviate from these guidelines, but completely deny all possession and access to a child.

Moreover, these consequences are not limited to cases involving the children of the perpetrator and the alleged victim, but to ALL children of the alleged perpetrator: even those of another relationship. Thus, even if the alleged perpetrator does not have any children as of the date of the alleged family violence, a finding of family violence could be used against the alleged perpetrator in future child custody disputes.

A finding of family violence also provides grounds for objecting to mediation and grounds for declining to enter judgment on a fully-negotiated mediated settlement agreement, thereby making future litigation more expensive and time consuming between the parties.

A finding of family violence also constitutes a "material and substantial change" to justify modification of an existing order regarding a child, thereby allowing the other parent to challenge an existing order more aggressively and without needing to wait a full year after the order was entered.

A finding of family violence also provides grounds under federal law for deportation, even if the perpetrator is legally present in the United States.

A finding of family violence also provides grounds for awarding spousal maintenance (Texas' watered-down version of alimony) in a divorce, even for brief marriages where spousal maintenance otherwise would not be possible.

Protective orders are matters of public record, available for anyone to research and find: from newspaper reporters to future friends or romantic interests. At the very least, it can cause unnecessary and unpredictable embarrassment and problems in the future. Although the chances are slim that anybody will ever think to conduct such research (not everyone is a celebrity), many people do avail themselves of the freedom to peruse these publicly-available records and draw inferences from these records.

Because Protective Orders are matters of public record, they can be used later in unrelated proceedings against the alleged perpetrator as evidence of a violent and dangerous character. The parties do not even need to prove anything (lay a foundation) to get a court to enter a protective order into evidence; because it is a matter of public record, a court can take "judicial notice" of a protective order, and infer anything it wants to infer from the fact that it was entered.

Finally, although protective orders do prohibit certain behavior that is otherwise illegal and should not be done, anyway, protective orders also criminalize behavior that otherwise would be completely legal. For instance, accidentally coming within a certain distance of an alleged victim could get a person sent to jail if a judge does not believe it was an accident. Normal conversation between the alleged perpetrator and the alleged victim becomes a criminal act, regardless of its intent or content.

Consequently, a Protective Order proceeding places far more at stake than the sudden and court-ordered end of a personal relationship with the alleged victim. Respondents in a protective order proceeding should thoroughly discuss the advisability of stipulating to a protective order with their attorney before doing so.

Myth #5: If You Were a Victim of Family Violence, You Should Obtain a Protective Order, "Just In Case."

This "myth" involves the most sensitive of all these discussions because we would never want anything we say on or off this web site to discourage any victim of family violence from pursuing a Protective Order when they truly do need one to protect themselves. This sensitivity heightens the necessity and advisability of thoroughly discussing a protective order with your attorney, not just making a rash decision based on what you read on the Internet. In no uncertain terms, family violence--even in the form of a mere threat--is abhorrent and wrong, and is not the way to conduct oneself in a relationship. Violence and threats of violence are not the way to deal with anybody, no less a loved one, no less a family member.

However, the consequences of a finding of family violence discussed above should affect not only an alleged perpetrator's willingness to stipulate to a protective order, but also an alleged victim's decision to pursue a protective order, in the first place. A Protective Order is a powerful weapon that should not be wielded or contemplated irresponsibly or whimsically, especially if children are involved. Often, several alternatives exist that can accomplish the same goal as a formal Protective Order.

In cases that do not involve children, breaking up a family or dating relationship is already difficult; a protective order proceeding can add fuel to this painful fire and often might unnecessarily aggravate and perpetuate the normal bitterness of a break-up felt on both sides. You should discuss with your attorney the advisability of pursuing alternatives that do not have such dire and absolute consequences.

In cases between the parents of children, the relationship with the an estranged alleged perpetrator will by necessity continue for the rest of your life, not just until your children turn 18. Although it is appropriate and necessary to protect children from rampant physical abuse, it is also appropriate to consider the long-term impact of pursuing a protective order on the ongoing relationship between the parents if a protective order is not really necessary to protect an alleged victim. At the very least, pursuing a protective order will irreversibly poison the relationship between the parents who need to be able to maturely discuss and jointly manage the caretaking and upbringing of the child. It also can affect how children view their parents, often in unpredictable and undesirable ways that backfire. Even if a younger child can be insulated from the proceedings, themselves, the impact and consequences do not end at the end of the hearing. For one thing, the children will learn about it someday and might feel conflicted and confused about it.

Finally, if successful, a protective order might prohibit a child from all contact with a parent. Although in the heat of the moment it might seem appropriate given the current animosity between the adults, the children often do not understand it that way, and it is not always in a child's best interest to have all contact prohibited or restricted, especially if the inappropriate conduct was restricted to the adults. Even if the petition for a protective order is unsuccessful, the poisoned relationship between the parents will still undoubtedly affect the child, even in the best of circumstances.

Consequently, victims of family violence should discuss with their attorneys not only whether or not a protective order is absolutely necessary to prevent future family violence, but also the impact and unintended long-term consequences of obtaining a protective order on the parties and the children involved.