In Texas, property is presumed as community property unless a spouse can prove otherwise. If a spouse claims that a particular piece of property is separate property and not community property, the burden is on them to overcome that presumption by showing the property in question is separate property using the "clear and convincing" evidentiary standard.Read More
Texas is one of the few unique community property states. Community property means any property acquired in the marriage by a spouse unless otherwise classified as separate property. The exception to this is property acquired by gift, devise or descent. In Texas, the presumption is everything is community property unless rebutted.Read More
Domestic Violence in Family Law Cases are not rare nor does it look like it will go away anytime soon. And this fact is unfortunate. More and more, women, men, and children are becoming victims to family violence at an alarming rate. As a family law attorney, I've seen more and more judges entering protective orders and making findings of family violence. Unfortunately, sometimes judges may enter these orders irregardless of the overwhelming evidence that no family violence has occurred or will occur in the future. But let's stay on track, that's a discussion for another day.
What is a protective order? What is a family protective order? How does it work? Will it really protect me? It's just a piece a paper what will it really do? These are questions I get asked often times when trying to navigate clients into the world of protective orders when it's clear there's been a history of family violence and continued violence when clients come to my office. So let's start with the basics.
What is a protective order?
A protective order in Texas is an order that is issued by a judge to prevent continuing acts of family violence, sexual assault, human trafficking or stalking. In Texas a protective order can be civil or criminal.
There are different types of protective orders but we will focus on those most commonly seen in family courts.
In instances of family violence, which is usually the case in Family Settings, an Applicant can file a Temporary Ex-Parte Protective Order alongside an Application for Protective Order. The Temporary Ex-Parte order is granted almost immediately with a pending court date and is effective for twenty days. If granted, a protective lasts for 2 years and in some instances can last up to 4 years.
Who can File?
A protective order can be filed by the following people:
- A prosecuting attorney
- An adult household or family member
- A person in a dating relationship
- The Department of Human and Regulatory Services
- An adult seeking to protect child against violent acts
What Evidence Do I Need to Show?
In some cases, the applicant who is being abused or is protecting a child that is being abused may not be able to show physical acts of past violence. In order to get a final protective order it is important to show the court evidence supporting your claim that violence has happened and is likely to happen in the future. Evidence such as:
- Pictures of bruises or damage to property
- Police Reports or medical reports
- Videos or text messages documenting abuse
- Witnesses who have witnessed past incidents of abuse
- Showing a pattern of past/prior abusive history
What if the Protective Order Gets Granted?
If you went to court for a protective order hearing the court will order the offender to do a couple of things such as staying a certain distance from you, refraining from contacting you, giving up all guns, etc.
In a case where a custody dispute is involved the judge will make a ruling if followed by a temporary order in regards to conservatorship which may affect both parents being awarded joint managing conservatorship. If the judge in your custody case finds that there has been a finding of family violence, by Texas law he cannot order both parents to be joint managing conservators. The applicant will be sole managing conservator and the offender will become the possessory conservator. The rights and duties alongside the actually visitation schedule will depend on the facts of your case. Some judges may award supervised visitation while other judges may not if they do not believe that the child or children will be harmed.
Here at OLG we take domestic violence very seriously. If you are a victim of family violence and are seeking to protect yourself or a member of your family please feel free to reach out to our office for a consultation. If you are on the receiving end for a protective order you believe was wrongfully entered and have evidence that no domestic violence occurred please feel free to contact our office as well.
When entering into a contested case for child custody it is important to understand that the court uses what we call "THE BEST INTERESTS OF THE CHILD" to determine which parent is better suited to be the primary parent. Often times parents get so wrapped up in their personal biases towards each other they often forget that even though they may not particularly like the other parent, does not mean the child should not love them or like them too.Read More
Gladiator Tip of the Day: As a father, how can I increase the chances of getting custody of my child/children in Texas?
1. Spending time with your child is key. Courts will look to see how involved you are in your child's daily life.
2. Be knowledgeable of the child's school activities, doctor appointments and extracurricular events.
3. Provide stability. Make sure you are providing or able to provide a stable environment for your child.
4. If you have prior court orders awarding visitation, make sure you are exercising your visitation of the child regularly.