What is a protective order? How does a protective order work? What can it do or not do? When does a protective order work and when does it not work? Lastly, who can request a protective order?
As an Attorney that has an office located in Williamson County, Texas, I have heard my fair share of answers to the above questions from people in various roles within our community. Lawyers, judges, police officers and average citizens have misconceptions about protective orders.
A protective order is a piece of paper. In and of itself it cannot protect a victim from family violence. However, a violation of a protective order does have criminal consequences. A protective order can also be an effective instrument to de-escalate situations where there is a pattern of violence.
Below you’ll find answers to the most common protective order questions I receive in my Round Rock family law practice.
Who can obtain a protective order?
The vast majority of “family violence” cases are male on female violence. However, a considerable amount of “family violence cases are female on male, male on male, or even female on female violence.
The family code defines “family violence” as 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 or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; abuse by a member of a family or household toward a child of the family or household; or dating violence. If you are the victim of family violence, and the violence is likely to occur in the future, then you can obtain a protective order.
Will a protective order help me gain an advantage in my divorce or child custody fight?
If your intention is to gain an advantage in your divorce or child custody dispute then you should know that a protective order is not a substitute for a divorce or child custody order. If you or your child have been a victim of family violence you should also seek a divorce and child custody order, modify the existing child custody order, or use another legal remedy to address the specific legal issue you are dealing with at that moment. Note that a protective order does not prevent the parties from co-parenting. A protective order can later be vacated or modified (with judicial approval), if the parties reconcile.
What is the difference between a restraining order and a protective order?
For purposes of this conversation the restraining orders and protective orders we are discussing are related to family law issues, or Texas Family code issues.
A restraining order in the context of a family law case such as a divorce or child custody case typically contains standard language filed within, or together with a petition for divorce, or suit affecting a parent-child relationship (petition in a child custody case). These temporary restraining orders (TROs), typically contain against one or both parties a laundry list of prohibitions intended to preserve property, protect the parties and maintain the status quo while the lawsuit is pending.
A typical TRO or injunction would prevent a party from harassing the other party, damaging property, hiding or secreting the children or canceling health insurance. A violation of a temporary restraining order does not in and of itself have criminal consequences. There are also no automatic ramifications for a violation of a temporary restraining order. A party must return to court with a motion for enforcement, or some sort of contempt action.
A protective order does carry criminal consequences if a party violates the order. The charge may even be a felony under certain circumstances and the prohibition language in a protective order can also be altered to fit the type of protective order being sought. The length of the order may also be altered under certain circumstances. A protective order combined with a final order in a divorce or child custody case may even create more protections for victims of family violence.
Can someone obtain a protective order if they are still in a dating relationship or married to the other person?
Yes. An adult involved in a dating relationship or married may obtain a protective order.
Can someone obtain a protective order if there is no evidence?
In order to obtain a title 4 protective order, under the family code, a judge has to make a finding that family violence has occurred and is likely to occur in the future.
Does this mean that a person who has never reported abuse to law enforcement can’t file for a protective order? No. Does this mean that if there are no witnesses that a person cannot file for a protective order? No. Does this mean that if there are no photos a person can’t file for a protective order. No. There also does not need to be scars, injuries or hospital visits. A lot of people who seek protective orders have never reported anything to the police or collected evidence. The testimony of the applicant for a protective order is sufficient to obtain a protective order.
Can someone obtain a protective order when there has not been any physical violence?
As stated above, the threat that reasonably places the member of family or household in fear of imminent physical harm, bodily injury, assault, or sexual assault is enough to establish family violence.
Consult With an Attorney
If you have any questions about protective orders, call the Round Rock Law Office of Clifford Swayze at 512-920-5080. We serve communities in Williamson County, including Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.