If you are going through a divorce or other family law matter, it is important to be aware of the potential for dangerous situations. If you or your children are at risk of violence or stalking, you can get protection from the court.
Protective and restraining orders are legal documents that can order your spouse or ex-spouse to stay away from you and your children and to stop contacting you. They can also order your spouse or ex-spouse to pay child support and alimony.
If you are considering getting a protective order, you should talk to a lawyer at The Law Offices of Richard C. McConathy. We can help you understand your rights and options and can help you file the necessary paperwork.
Here are some additional tips for protecting yourself and your children during a divorce:
- Make a safety plan. This should include a list of people you can call for help and a plan for where you can go if you need to escape your home.
- Keep a record of any abuse. This could include writing down what happened, taking pictures of injuries, and saving threatening text messages or emails.
- Be aware of your surroundings. Avoid being alone with your spouse or ex-spouse if you feel unsafe.
- Tell your friends and family what is happening. They can support you and help you keep safe.
If you are in immediate danger, call 911.
Protective Orders vs. Restraining Orders
A protective order is a court order that helps to protect people from abuse and harassment. It is most commonly used to prevent domestic violence, but it can also be used to protect people from other types of abuse, such as stalking and sexual assault.
A temporary restraining order (TRO) is a type of protective order that can be granted quickly, without a full hearing. TROs are often used to protect people from immediate danger.
In a family law case, a TRO can be used to prevent a person from:
- Abusing or harassing their spouse, child, or other family member
- Removing a child from the state without permission
- Enrolling a child in a new school without permission
- Withdrawing money from joint bank accounts
- Taking out loans in the other person’s name
- Selling or disposing of marital property
TROs are typically in effect for 14 days, or until a full hearing can be held. At the hearing, the judge will decide whether to grant a permanent protective order.
Here is a more concise version:
Protective orders help to protect people from abuse and harassment. Temporary restraining orders (TROs) are quick, emergency orders that can be used to prevent immediate danger in family law cases. TROs can prohibit people from abusing or harassing their family members, removing children from the state, enrolling children in new schools, withdrawing money from joint accounts, taking out loans, or selling marital property. TROs are typically in effect for 14 days, or until a full hearing can be held.
Types of Protective Orders and Restraining Orders
A protective order is a court order that prevents someone from abusing or harassing another person. It can be issued to protect people from domestic violence, human trafficking, or stalking.
There are three types of protective orders in Texas:
- Emergency Protective Orders: These orders are issued by a magistrate judge after an arrest for family violence, stalking, sexual abuse, sexual assault, indecent assault, or trafficking. They last for 31 to 61 days, or up to 91 days if the abuser was arrested for a domestic violence offense involving the use or display of a deadly weapon.
- Temporary Ex Parte Protective Orders: These orders are issued by a family court judge without a hearing, which means the abuser does not have to be present. They last for 20 days, but can be extended for an additional 20 days if the abuser does not appear in court for a hearing.
- Permanent Protective Orders: These orders are issued by a family court judge after a hearing. They can last for up to two years.
Temporary restraining orders (TROs) are similar to protective orders, but they are used in different situations. TROs can be issued in civil or family cases.
- Temporary Restraining Orders (Civil): These orders are used to prevent someone from causing immediate and irreparable harm to another person or their property. They can last for up to 14 days.
- Temporary Restraining Orders (Family): These orders are used to protect people from domestic violence or stalking. They can last for up to 20 days.
If you are considering filing for a protective order or TRO, you should consult with an attorney to discuss your specific situation.
Magistrate’s Order of Emergency Protection (EPO)
Emergency Protective Orders (EPOs) are the most common type of protective order in Texas. They can be issued by a magistrate judge without a hearing, but only after an arrest for a family violence offense, trafficking, sexual assault, indecent assault, aggravated sexual assault, or stalking.
EPOs are discretionary except in two cases:
- If a person is arrested for a family violence offense with serious bodily injury.
- If a person is arrested for a family violence offense with the use or display of a deadly weapon.
EPOs can be used to prevent further abuse, harassment, and stalking. They can also be used to prohibit the abuser from contacting the protected person or going near their home, workplace, or school.
EPOs are temporary and last for up to 61 days. If the protected person wants a permanent protective order, they must file a petition with the family court.
Important to note:
- EPOs do not apply to the protected person. They are only enforceable against the abuser.
- If the protected person contacts the abuser or invites them back to their home, this does not violate the EPO. However, if the abuser responds, they could be charged with a crime.
EPOs are temporary orders issued by a magistrate judge without a hearing after an arrest for family violence, trafficking, sexual assault, indecent assault, aggravated sexual assault, or stalking. EPOs can be used to protect people from further abuse, harassment, and stalking.
EPOs typically last for 31 to 61 days, but can be extended to 91 days if the abuser was arrested for assault with a deadly weapon. Violating an EPO is a crime and can result in jail time and fines.
Important things to know about EPOs:
- EPOs do not require a hearing.
- EPOs do not require a specific relationship between the abuser and the protected person.
- EPOs can only be obtained after an arrest.
- EPOs only apply to the person who was arrested.
- EPOs are temporary and can be modified or lifted by a judge.
If you have been served with an EPO, it is important to read it carefully to understand what is prohibited and for how long. You should also contact an attorney to discuss your rights and options.
If you are considering asking a judge to modify or lift an EPO, it is important to know that this can be difficult to do. The magistrate who issued the EPO is unlikely to change it, and you may have to wait several weeks for a hearing. Even if the alleged victim is on your side, there is no guarantee that the judge will agree to modify or lift the EPO.
If you are facing criminal charges for violating an EPO, it is important to contact an experienced criminal defense attorney immediately.
Temporary Ex Parte Protective Orders
Temporary ex parte protective orders (TEPOs) are court orders that can be issued without a hearing to protect people from family violence abuse or neglect of a child. To grant a TEPO, the judge must find that there is a clear and present danger of harm to the applicant or their family member or child.
TEPOs can be used to order the abuser to do or not do certain things, such as:
- Stay away from the protected person and their home, workplace, and school
- Not contact the protected person in any way
- Not possess firearms
TEPOs are typically in effect for up to 20 days but can be extended for an additional 20 days upon request.
If an abuser violates a TEPO, they may be held in contempt of court. This means that they could be fined, jailed, or both.
Important to note:
- TEPOs are different from emergency protective orders (EPOs). EPOs are issued by magistrate judges after an arrest and can be enforced as criminal offenses. TEPOs are issued by family court judges and can only be enforced as contempt of court.
- TEPOs do not require a hearing, but the abuser has the right to a hearing to challenge the order.
- TEPOs can be modified or lifted by a judge.
If you are considering filing for a TEPO, you should contact an attorney to discuss your specific situation.
Permanent (Final) Protective Orders
Permanent Protective Orders, often referred to as Final Protective Orders in Texas, typically have a duration of up to two years, but certain conditions can lead to longer-lasting orders. Here’s a breakdown of the key provisions regarding the duration and potential discontinuation of Final Protective Orders in Texas:
- Extended Duration: A judge may issue a Final Protective Order for longer than two years if either of the following conditions is met:
- Serious Bodily Injury: If the abuser caused serious bodily injury to the applicant (the person seeking protection) or their family or household members.
- Multiple Prior Orders: If the same applicant has previously obtained two or more protective orders against the same abuser, and in each case, the judge found that the abuser committed family violence and was likely to commit family violence in the future.
- Expiration Without a Specified Time Period: If a Final Protective Order does not specify a time period for its duration, it automatically expires on the second anniversary of the date it was issued. This provision is outlined in Texas Family Code § 85.025(a-1).
- Petition for Discontinuation: After one year of being subject to a Final Protective Order, the person under the order can petition the court to have it discontinued. For Final Protective Orders that originally had a duration of more than two years, a person can petition for discontinuation after each additional year that passes.
- Court Hearing: When a person petitions for the discontinuation of a Final Protective Order, the court will hold a hearing to evaluate whether there is a “continuing need for the order.” The judge will consider various factors to make this determination.
- No Automatic Discontinuation: It’s essential to note that simply showing a lack of violations of the protective order is not sufficient to have it discontinued automatically. The decision to continue or discontinue the order is at the discretion of the judge, and they will assess the circumstances and safety concerns.
- Automatic Extension for Incarceration: Rules exist for the automatic extension of a Final Protective Order if the person subject to the order is incarcerated. This ensures that the protected party remains safeguarded while the subject of the order is unable to have contact.
These provisions aim to balance the protection of victims of family violence with the opportunity for individuals who may have reformed or no longer pose a threat to seek the discontinuation of a Final Protective Order after a specified period, subject to court review.
Types of Temporary Restraining Orders (TROs)
A temporary restraining order (TRO) in Texas can be obtained in two different contexts: civil court and family court.
A civil TRO can be obtained when there is a threat of immediate and irreparable harm if the TRO is not granted. Civil TROs are often used to prevent individuals from contacting one another.
Civil TROs cannot be longer than 14 days unless the other party agrees to a longer period.
Family TROs are filed to protect a spouse, child, or property in the context of a divorce or custody case. Family TROs can be granted without notice to the other party, and they can last for 14 days unless they are extended or withdrawn.
Unlike civil TROs, family TROs do not require a showing of immediate and irreparable harm.
Important things to know about TROs:
- A TRO is not effective until the person the order restrains receives actual notice of the order.
- In divorce cases, the petition for a TRO only needs to allege that the order is necessary for the protection of the parties and the preservation of their property.
- A court cannot restrict a spouse from entering an occupied residence.
TROs can be a powerful tool for protecting people from harm, but it is important to understand the different types of TROs and the requirements for obtaining one.
Defending Against False Allegations Of Domestic Violence
If you are facing false or exaggerated claims of abuse during a divorce or child custody dispute, you need an experienced family law attorney on your side. Representing yourself in this situation is not wise, as you could lose your child custody or visitation rights.
The Law Offices of Richard C. McConathy can help you defend yourself against false abuse claims. We can present your side of the story in court, cross-examine witnesses, challenge evidence, and present evidence in your favor. If we cannot prevent the issuance of a protective order, we will seek to minimize the restrictions it contains. We can also seek to modify the terms of an order.
In addition to our family law practice, we also have experience in criminal defense. We can defend you if you are accused of assault or criminal contempt of a protective order.
Here are some additional things to keep in mind if you are facing false abuse claims:
- Stay calm and collected. It can be difficult to remain calm when you are being accused of something you didn’t do, but it is important to do so. Getting angry or emotional will only make things worse.
- Gather evidence. Collect any evidence you can that refutes the claims against you, such as text messages, emails, or witness statements.
- Contact an attorney immediately. An experienced family law attorney can help you understand your rights and options, and they can represent you in court.
Don’t wait to get help. The Law Offices of Richard C. McConathy can help you defend yourself against false abuse claims and protect your rights.
Domestic Violence & Restraining Orders Attorney in Tarrant County, TX
If you need the protection of a protective order or restraining order, or you are dealing with an unjustified order in Fort Worth, Arlington, Grapevine, Keller, Southlake, or other cities in Tarrant County, TX, do not wait to get legal help. The Law Offices of Richard C. McConathy understands the tremendous urgency of these situations and will take all of the appropriate action to protect your rights.
Feel free to call (817) 422-5350 or contact us online so you can schedule a consultation that will let us review your entire case. Our firm has a wide variety of domestic violence case experience that includes injury to a child, interference with 911 calls, and violations of protective orders.