Protective Order Related to Domestic Violence

Walters Gilbreath, PLLC

Protective Orders are one of the most severe and serious aspects of Texas Family Law. Once granted, they are supposed to protect the safety and even lives of the person applying. Beyond that, they carry some important penalties for someone that a Protective Order is placed on. It ensures that they are not going to see their child on a regular basis or have any involvement in their child’s life decisions. I have found that different Judges in different Courts vary widely in granting them. When they first became common, I was practicing in the Austin area, and it seemed to me that several of the Judges in Travis County gave them out too easily. It has now gotten more difficult to get them in other parts of Texas as well as Austin. Houston is considered one of the more difficult places to get one, although the Court in Harris County certainly does give them out.

What’s the difference between a Protective Order and a Temporary Restraining Order?

Both Temporary Restraining Orders and Protective Orders “restrain” someone by restricting their liberties; however, a Protective Order is much more restrictive and has worse consequences if it is violated.

A protective order is used in cases involving domestic violence. It prohibits the offender from injuring or attempting to injure the victim and/or the victim’s children. A protective order may also include provisions for geographical restraint or cut off communications, but the restrictions depend on the court ruling for each case. Most importantly, if the offender violates the order, it is a criminal offense and taken very seriously.

On the other hand, restraining orders in Texas are often used in divorce cases. They prevent certain actions by the divorcing parties while the divorce is going through, such as one party incurring new debt or speaking poorly of the other party in front of their children. The consequences of breaking a restraining order are not as serious as those of breaking a protective order; the offense is reported to the court, and the court can decide how to proceed. Thus breaking a restraining order is not necessarily a criminal offense – although it can be if the court rules as such.

What does a Protective Order do?

The main purpose of a protective order is to deter the abuser from further harming the victim and the victim’s children with the threat of facing criminal charges if he breaks the order. However, a protective order can prevent more than just physical harm: depending on what the court includes in the order, a protective order may also call for ceasing all communication, completing battery intervention or counseling, or staying away from the victim’s place of work, for example.

In any case, it is against state and federal law for the abuser to possess a firearm or ammunition while under a protective order (unless the person is a peace officer actively engaged in employment as a sworn, full-time paid employee of a state agency). The US Gun Control Act further states that it is a federal crime for gun suppliers to knowingly supply arms to someone under a protective order.

One concern for victims of domestic violence may be sharing a living space with the abuser. Protective orders can account for this concern through the issuance of a “Kick Out Order”. To qualify for this process,

  • the applicant must live at the home now or in the past 30 days;
  • the family violence must have occurred in the past 30 days, and;
  • it must be clear and likely that there will be violence again in the future. (V.T.C.A. Family Code section 83.006 (2011)). To remove the offender from the house through a Kick Out Order, the victim must also provide live testimony.

Do protective orders work across state lines?

Thankfully, federal law requires that protective orders must be upheld if you move to another state or US territory as long as the abuser received notice that he had the opportunity to present his side of the story in court (it doesn’t matter if he actually went or not, just that he was given the opportunity). This provision means your protective order issued in Texas is still valid if you move or travel to another state and vice versa. The order, if violated, will be enforced by the law in whatever state you are in.

Summary

A protective order helps protect victims of domestic abuse from further harm. It is not the same as a restraining order because it can often be more restrictive and has harsher consequences if violated. It may be “just a piece of paper, ” but they often deter further crimes because abusers know they could easily end up in prison.

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