For Better, Worse, Or Divorce Podcast

In this episode, Brian Walters meets with associate attorney Raya Jackson to discuss the critical issue of domestic violence in family law cases. Brian and Raya break down the legal framework and protective measures available to victims, discuss how domestic violence impacts divorce and custody proceedings, and explore the court’s approach to safety and parental rights. The attorneys wrap up the episode by providing legal resources for those affected

Brian Walters: Well, thanks for tuning into the For Better, Worse, or Divorce Podcast where we provide you tips and insights on how to navigate divorce and child custody situations. I’m Brian Walters, and today I’m joined by one of our associate attorneys, Raya Jackson, and today we will be discussing when domestic violence is involved in family law matters, in particular the statutory changes that have occurred with that, although we’ll talk a little bit about the basics. Raya has had a lot of experience in these types of cases recently, and so I thought it’d be great to have her on the podcast. So thanks for joining us today, Raya.

Raya Jackson: Thanks for having me.

Brian Walters: Great. Well let’s start with some definitions since we’re lawyers. What is domestic violence, or we call it family violence, is the specific legal term we’re going to use in Texas. What does that consist of in Texas to your knowledge?

Raya Jackson: So family violence according to the Texas Family Code Section 71.004, that means an act by a family member or a member of the household against another member of the family that’s intended to result in physical harm, bodily injury, assault or sexual assault, or that’s just a threat that places a person reasonably in fear of imminent physical harm or that bodily injury, assault or sexual assault. It doesn’t include defensive measures. So if you’re trying to protect yourself. And so that’s how we typically define family violence. And then dating violence, which is  very similar, is just someone you have an intimate or a dating relationship with. And so that gives you standing to come under the statute.

Brian Walters: Yeah, that’s right. And I’ve been around long enough to remember when this first of these statutes came into effect. Now obviously being violent toward another person, whether they’re a family member or not, or dating them or not is a crime and has been for a very long time. But this is a specific statute under the family code, which is a civil code. This is not something that the police arrest you for. This is something you have to, that can happen also, right? But what this means specifically is how it affects family law cases and certain things that can be done, for example, protective orders to be put in place that would protect people.

And I’ll just tell you, protective orders are kind of what’s called a prior restraint in our law. In other words, you’re being told not to do something before you’ve necessarily done it. And generally, prior restraints and under American law are not allowed or disfavored because you’re not supposed to tell someone you can’t do something if they haven’t actually done it. So it is different and it’s evolved over time. When this first started out, it was very limited. There’s no dating violence provisions, there was no definition of a family or a household. Those types of things were much narrower and it’s been expanded over time.

It’s always had the basic structure that we have now, but it has expanded over time and has changed some. And in particular, there’s been a number of changes. There was a change to the legal standard to obtain one a while ago, a year or two ago, and then there has been another change that added something related to stalking that wasn’t there before. So let’s talk a little bit about that. I think we’ll get into some of these updates on June 1st in a second. But I’ll say to me the biggest change was, I think about two years ago now, was the change of the legal standard and it used to be that you had to show that family violence had occurred, number one, and was likely to occur again.

And generally speaking, in those cases that went to court,those  that were contested, the question was not really the first one, that there probably had been something that had occurred, but it was the second part about whether it was likely to occur again. And that was usually your best way to defend against one of those, or it was the hardest part of getting one was because the person would come in and argue who was the alleged person who’d done the family violence. “Well, we had an argument, I lost my temper, but it will never happen again. It didn’t happen before.” And that’s no longer the case.

You just have to show that family violence has occurred. There’s no need to prove that it’s likely to occur again. So it’s gotten easier to get protective orders since then. But let’s talk about this stalking statute, because stalking is, as we typically understand the term, is not violence. Right? I mean, it can be scary, terrifying, it can lead to violence, but it is not in and of itself. So that’s a pretty big change. So tell us a little bit about when that law went into effect and how that has and kind of what are the provisions of that?

Raya Jackson: So the most recent update to that was about 2021. I’m starting to see it more frequently. There are stalking laws under the state of Texas under the penal code under 42.072, which means that it’s illegal when a person engages in a pattern of repeated behavior that’s directed at a specific person that will cause a reasonable person to feel fear. And so a stalker can make threats that include, “I’m going to injure this person” or death threats or this to injure a member of their family, their household, someone they’re dating or even pets.

And so a case that I worked on was where the husband and the wife had gotten divorced, the wife began to date someone else. The wife lived about 20 miles from the guy, and he started jogging in her neighborhood in front of her house and sending her different emojis, like photos or emojis of guns and telling her she better watch her back and she would look out of her window and he would be standing outside of her window and jogging past her window. And so under the Texas Penal code, he was arrested for stalking because those threats were directed at her and a reasonable person would feel fear under those circumstances.

Brian Walters: Yeah, that’s interesting. I think again, under the old family law statute for domestic violence, it’s not a direct threat. Right? “Well, I just sent you an emoji” or “I just sent you… you know I like guns. I thought this was a cool gun,” whatever they’re going to say, and you probably wouldn’t be able to get a protective order. But I mean, it’s obviously weird behavior, right? It’s obviously, I mean, that’s kind of classic stalking behavior. Right?

He didn’t jog 20 miles there just randomly. “I just happen to like to jog 20 miles one way and then jog some more and then jog 20 miles back.” Right? He was doing that on purpose, so. Now what about if somebody else’s, if they’re not directly, the person you’re worried about isn’t directly stalking you, it’s a friend or a family member of theirs or anonymous thing that you can’t tell who’s sending it, but you pretty much know who’s behind it, but you can’t prove that it was them or you know it was somebody else that’s doing it for them? Is that something that comes under that statute?

Raya Jackson: It does. I would say it comes in handy to hire a lawyer that has experience in these areas because under the stalking statute, the stalking can still be perpetrated by someone else that’s acting as essentially an agent of the actual stalker. So there are people that will send a family member, “Hey, go sit outside this person’s house, go follow them to this location.” I’ve had that happen in cases where someone was trying to intimidate and scare someone, and so the guy sent his sister to follow the wife around. And so under the statute, both the person that is acting as the agent as well as the principal in that situation would be subject to this code.

Brian Walters: Yeah, that’s interesting. And that is also a big change. Like you said, that was a good way to avoid the prior protective order statute, would be to send a family member or friend to do it. And then generally there wouldn’t be any consequence for that family member or friend. So that is very, very odd, odd behavior, worrisome behavior for sure. Are there any particular things that stalkers typically do that someone should be on the lookout for? I mean, obviously you’re allowed to, in our society, you’re allowed to, if you’re interested in somebody, you’re allowed to say, ask them out or whatever or see if they want to meet up for coffee or whatever. That’s not what we’re talking about is it?

Raya Jackson: No. So following someone, to be literal here, following someone on social media, right? It’s not necessarily stalking in and of itself, but if you are just to bring us into this year, if you are creating fake pages, if you are sending verbal threats or threatening mail or you’re damaging their property, so you are spray-painting their vehicles or you are actively participating in surveilling that person, is a victim of stalking because you are following that person, they’re typically, they’re aware of the situation, but not all of the incidents of stalking. So for example, someone could be followed for days, weeks, years, and they may not know every time that person is sitting outside, but at some point that person does become aware of it. And it usually takes different forms of the way that stalker’s conduct is portrayed.

Brian Walters: Right. What if somebody is, their relationship’s on and off, right? They were together, maybe they’re married, maybe they just dated or whatever, and then they’re not, and they get back together and then they’re not. Is that any kind of defense for this kind of stalking behavior? “Well, I thought that was okay” or “I thought she wanted me to do that” or whatever. Is that a defense to this?

Raya Jackson: Well, because once you have an intimate or a dating relationship, even if you terminate that intimate or dating relationship because you’ve had one, you’re still subject to a statute. If you’re still making repeated phone calls, if you’re sending multiple text messages or even messages through social media, if you’re sending even unwanted gifts to their residents.

I’ve had cases where people drop off things on people’s porches. If you use tracking software, which by the way is a federal crime, if you’re using GPS’s, Find My iPhone or different things that they have, Life360 without the person’s consent, you’re vandalizing their property. If you’re following them or even their family members, you are subject to this statute.

Brian Walters: Yeah. I think the tracking software is an interesting one as well, because that statutes, they’re both federal and state ones. Like you said, they’ve somewhat lagged behind the technology, which is not unusual. And the defense is often, “Oh, well they let me sign up for, we agreed to put ourselves on Find My iPhone” or whatever, or “We agreed that there would be, we have access to each other’s phones and know where the other person was.” That’s not an unusual situation. However, if your relationship has ended, you can assume that’s also ended their consent for you to know where they are or where their phone is.

Another one, another common one are vehicles. There are typically these days where your vehicle is, I have a little app on my phone. I can tell where my car is at all times, and actually two of our cars. And so I can pretty much tell where my wife is because we share the car at different times. Right? But if at some point we weren’t husband and wife anymore, guess what? It’s not going to be a defense for me to say, “Well, three years ago she knew I had her access to her phone or her car” or whatever. Right?

That’s just not okay. So you got to take into consideration what’s going on currently in the relationship it sounds to me. So I assume different people are going to react differently to the same type of situation. Right? That where certain behaviors might really terrify a person, one person, and the same behaviors might just be annoying or stupid or almost pathetic to another person. Is that a defense for someone who’s conducting this talking to, “Hey, my last girlfriend didn’t really bother her, she just ignored me, and now the new one is terrified.” Can he use that as a defense like, “Hey, I didn’t know this would terrify her.”

Raya Jackson: Absolutely not. I mean, the standard for the statute is if that is a reasonable person. Right? And so there’s this fictional person that if to most people it would evoke fear or make them feel threatened, then you are still violating this law. It doesn’t matter that one specific person was just irritated that you were following them. If you’re still doing the things that the statute specifically prohibits, then you are still guilty of the stalking statute.

Brian Walters: Right. The examples I’ve given have been of people that were generally offenders under this, but it also goes the other way with the reasonable person statute. Right? Like if a boyfriend or girlfriend have split up for a while or is having a bad week or whatever and somebody sends flowers to the other person at work that says, “Hey, I hope you feel good and we can work this all out.” I assume that’s not, someone can’t go after them under the stalking statute. Correct? Yeah.

Raya Jackson: Right.

Brian Walters: I’m sure just like with protective orders, sometimes they get granted, sometimes they’re not. Sometimes people use them in litigation as an offensive weapon that might not be called for. But that’s why you have a judge. Right? And that’s why you have a reasonableness standard. So what about protective orders against stalkers? Is that now available?

Raya Jackson: Yeah. So now under Texas law, you can seek a protective order against a stalker. Even if you don’t have a current or a formal dating relationship with them, you can still seek a protective order. There are different types of protective orders that you can seek for outside of stalking. And so you have what we call MOEPs, which is a magistrates order of emergency protection. It’s a criminal order.

So once someone is arrested for one of these crimes, the judge will put any emergency protective orders on them to stay a certain amount of feet away from you and things like that. And prohibits, specifically prohibits them from this specific conduct. Recently I was dealing with a case, it was an enforcement of a protective order where it was a stalking statute. She continued to really harass this person’s family members and stalk this person’s location. There was proof that she had done so, and so as we were in court, that person was arrested on the spot for violating the protective order.

And that is a crime even in civil court. First of all, if you’re on a MOEP, if you’re on any type of probation, that will immediately revoke that and you’ll be incarcerated until trial and then charged with additional charges. But in our civil realm of things, you can be sentenced to jail 180 days per violation. And so you can sit in county jail for years really depending on how many violations and what you violated. But if there’s a protective order and you violate it, the consequence is incarceration usually and can be attorney fees.

Brian Walters: Yeah. I think this is going to be a big change to our laws, and I think it’s something that’s going to be taken very seriously. One of the hints about that to me is generally when the legislative session ends, there are things that go into effect on September 1st of the following year or September 1st, three months after it goes into effect. This one went into effect June 1st of 2024, which tells me it was something a little out of the ordinary for the timing of these things and indicates it’s quite serious.

All right. Well, one last topic and then we’ll wrap it up, which is domestic violence or family violence and divorce and custody cases. I’ve said for a long time it’s sort of the atomic bomb of family law litigation, especially with children, but even without it. And basically what I mean by that is if the court’s convinced someone has committed family violence, that affects everything in a major way. It can affect the grounds for divorce, it can affect the division of property and assets, it can qualify you for spousal maintenance or alimony where you normally wouldn’t be. That’s the money and divorce side of things. What about when there’s children involved? How does that affect those cases?

Raya Jackson: The best interest of the children is paramount and the courts will look at two things, the violence that took place and if the child was impacted by the violence. And so if a person, which is in another one of my cases, essentially what occurred is that the case had just come to a conclusion and the guy broke into the mother’s residence through her window. And when she woke up, he was sitting on her bed with white gloves on and he threatened to kill her and threatened to take the child out of the country and abduct the child out of the country and threatened to commit harm to the child.

And so that person, because of that law that changed on June 1st, 2024, now there are forms that are required. We used to have to draft these things from scratch and people would accidentally leave out statutory requirements. And so now these forms, you just check boxes and write what happened. That lady was able to get that completed on her own and then she just brought it to an attorney to review and then the attorney helped her get everything filed. But it expedited the process.

And so it is definitely a consideration that the courts will look at is that domestic violence, the stalking statute and how it is impacting this child, how your pending criminal charges, if any, would impact your ability to see the child. If there is an emergency protection order that says that you can’t be around the child, that will trump any type of custody order that you have, whether or not the visits need to be supervised. If the child was harmed, what was the harm? Did it cause serious injury to the child or even death? And if that’s so, the court can terminate parental rights. And these allegations are a big deal in these type of cases.

Brian Walters: Yeah, for sure. I mean, the public policy of Texas as it relates to children is number one that if possible, they should have a lot of time with both parents. They should both be involved in their upbringing and decision-making. But that’s if both parents are functional. And being violent, it is very specifically not what the state of Texas wants children to be exposed to.

And if there is one, especially one parent involved in that, then they are going to come down very, very hard and they do not want children seeing that behavior and then turning around and being damaged by it and then perpetrating the same things in their lives. So it’s a very serious thing for sure. And in fairness, there are plenty of false allegations made about these types of things. And because of these consequences in our litigation or just because people see the same thing differently, it is very serious, for sure.

Okay. Well, that is all for today. If you like what you’ve heard today, do us a favor and leave us a review. We appreciate all feedback, especially when it helps us better the podcast. As always, if you have any follow up questions to the episode or would like to talk to one of us directly about your family law situation, reach out to us at podcast@waltersgilbreath.com or you can contact us directly through our website, waltersgilbreath.com. We’ll also post a link to some of this information that we’ve been discussing, including some resources in the show notes. I’m Brian Walters, joined by Raya Jackson. Thank you for listening.

Raya Jackson: Thank you.