In this podcast episode, Jake Gilbreath and Brian Walters discuss the difference between restraining orders and protective orders in regards to family law, custody, and divorce cases and what it means if you get served with one of these orders in Texas.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Jake Gilbreath: Welcome back to For Better, Worse or Divorce. I’m Jake Gilbreath. I’m here with Brian Walters, and for this episode we’re going to talk about restraining orders and protective orders in a divorce. And a lot of times there’s a confusion even amongst lawyers, particularly non-family law practicing lawyers about the difference between a restraining order and a protective order. So family violence protective order. So I think let’s start first talking about restraining orders because that’s the most common thing that you see in a divorce or a child custody case. So first and foremost, I think what’s important to talk about, and Brian, you know this because you do a Harris County cases. I do as well, but I know you probably take more Harris County cases than I do.
Jake Gilbreath: There, when a divorce is filed in certain counties, there’s almost in every single case, a restraining order entered. The Family Code authorizes when a divorce is filed, a restraining order being issued by the court without the need, even an affidavit supporting the request. There’s just sort of standard restraining order that gets issued in a divorce, and what that restraining order says, kind of the one that’s authorized by the family code without any need for any special pleading or anything is essentially what I tell clients is they don’t be a jerk rules, right? It’s like, “Don’t hide money, don’t hide the kids, don’t change the kids’ enrollment in school. Don’t run off out the state of Texas with the kids. Don’t destroy things, don’t sell things.”
Jake Gilbreath: “Really don’t spend money unless it’s for reasonable living expenses, and for attorney’s fees.” And a lot of the form restraint orders in some of these counties say don’t have an unrelated adult spend the night with the kids. Kind of common sense rules, but it’s legally titled a restraining order in the Family Code. And so when a divorce gets filed, there’s this request for a restraining order. And counties like Harris County judge signs a restraining order, and then somebody gets served at the divorce petition. And then we get a lot of calls, Brian, of people that gets served with those and go, “Oh my goodness, there’s a restraining order against me. What did I do? I didn’t do anything wrong. She must or he must be saying that I am violent or something like that.”
Jake Gilbreath: And then you look at it’s like, “No. That’s standard in every single divorce in a county where it’s not a standing order.” We’ll talk about standing orders in a second. These are just sort of standard rules that get put in place. It’s called a restraining order in this situation, but it’s normal, it’s not controversial, and it’s going to be turned into what’s called temporary injunctions at a temporary orders hearing. It’ll be made mutual. So that’s kind the lowest on the Richter scale restraining order. We’ll talk about other ones in a second, but that’s kind of the standard one that gets issued in counties like Harris County that don’t have a standing order. So I guess, Brian, can you explain how some counties have dealt with this through a standing order so there’s not a restraining order issued when the case is filed?
Brian Walters: Okay. So because restraining orders are, as you said, unnecessary most of the time, they are also a lot of work for the courts and frankly they’re a lot of work for the lawyers, which means more fees for people. A lot of counties have put in place what’s called a standing order, which is an order that says all those things you just discussed, basically don’t a jerk, don’t do anything dramatic, don’t money the kids, anything like that. Put them in place, and go into effect against both parties. And so one of the differences is a restraining order can be against both parties but it is often just against the party, the other side. So it’s an attempt to avoid all of that extra work, all the questions about it and the unfair or unequal application of it.
Brian Walters: It’s also they’ve been thought through carefully, and so sometimes courts… I mean, these restraining orders are long, a lot of times they have 30 or 40 court parts of them and so they’ve thought these standing orders through carefully to not cause unexpected problems. Good example was a case, an intake I had this week where parties weren’t married, they had a kid. They agreed with the final order back in April established that dad is the dad, and allowing mom to have custody and to reside anywhere in the world really without… There’s no domicile restriction very specifically that. And so that was in April. In May, she told dad, “I moved into North Carolina.”
Brian Walters: In June, he filed a petition to stop that even though he’d agreed to it in two months ago and it was in Dallas, which has a standing order, Dallas County. And it was very carefully worded. It didn’t just say like you said, “Don’t leave the state with the kid.” It said, “Don’t leave the state with the kid unless you have the written permission of the other side.” Which he actually texted her, it was okay at one point and then I guess he withdrew it. But it also said, “Or unless you have an order that specifically allows you to do it,” which she does. She has one from April.
Brian Walters: So where a normal restraining order might have said just, “Don’t leave the state with the kid,” and then it had the effect of changing the underlying order and forcing her into court to now get a hearing to which could take two months or whatever to overturn that. So those are the multiple reasons that you have standing orders. Sometimes I’m surprised that they aren’t that way in every county, but from what I understand, some judges think that they’re either unenforceable or unconstitutional potentially or maybe too heavy handed when people just maybe don’t even want those restrictions on each other. So that’s what you have with standing orders, which I think are more common than not, and probably increasingly common is my observation.
Jake Gilbreath: Yeah. It used to be the more rural counties wouldn’t have them and then Harris County didn’t have them. But now even the more rural counties are sort of picking them up, and yeah that deal about the, “Don’t leave the state of Texas,” that was fixed in recent years because there’s sort of form standing orders used to say, “Don’t leave the state of Texas.” Which is actually, that was a problem with prior standing orders, right? Because it had the effect of change in the underlying order with no hearing or anything. So that’s been fixed in most counties. So back to the restraining orders.
Jake Gilbreath: So in those counties that you don’t have a standing order or sometimes frankly you have a lawyer that practices in a county that has a restraining order, doesn’t realize that he or she’s practicing in county that has a standing order until you see restraining order language in your divorce petition. And again, people kind of freak out. They see it and they think they’ve done something wrong, and a lawyer looks at it and goes, “Nah, this is normal stuff. It’s for everybody.” Again, that’s the sort low level restraining order. Then there’s kind of a more substantial restraining order that’s not just the standard in every single divorce where there’s what we call some extraordinary circumstances.
Jake Gilbreath: There’s something specific that’s going on with this family that needs the court to make an emergency order without the other side being even notified, and that’s under rule 680 of the Texas Rules of Civil procedure. Or the court can essentially put in place an emergency order without the other side even knowing about it. Now two things have to happen with that. It has to be one, supported by an affidavit. You can’t just go down to the court and say, “Judge, enter an order right now that says dad can’t have any access to the kids because we want it and just trust us.” And the judge sign.
Jake Gilbreath: It has to have an affidavit attached alleging facts that essentially tell the court. If these facts are true, and there will be a hearing to determine if they are or not. But, “Right now as a judge, I’m looking at this affidavit, if these facts are true, this is an emergency, this is a dangerous situation, what have you, and I’m going to enter an order right now that restrains the other side from doing something, but I have to have an affidavit to do that. And two, there has to be a hearing set, and that hearing has to take place within 14 days.” It can be extended rule 680, it can be extended one time for good cause of, or of course by agreement. But you got to have an affidavit, you got to have a hearing right away.
Jake Gilbreath: filing for divorce,” and he starts moving money overseas, something like that. So wife goes in, fills out affidavit, and say, “My husband said he’s filing for divorce. Look judge, he’s taking money. He told me he is in this text message he’s going to send all the money to his family overseas, and I’m afraid he’s going to do that. So judge enter a restraining order right now without even notifying the other side that freezing the accounts are prohibiting specifically those transfers or prohibiting the sale of this house or what have you.” And the judge can sign an order, it gets served on the other side.
Jake Gilbreath: And then that order’s in place for 14 days unless it’s dissolved by the court and 14 days until there’s a hearing. And then a kid situation would be, “Judge, she got a DWI with the kids in the car two weeks ago. The pictures of her drinking. I’m filing for divorce, she’s not safe around the kids. So based on this affidavit, without even letting the other side know, enter this emergency order that says that she can’t be around the kids or she can’t drive the kids or what have you.” And the judge could sign that if, based on the affidavit, that it supports the request, that’s a restraining order that gets put in place. You get set for a hearing and then in 14 days there’s going to be a hearing where the judge determines was this appropriate or not.
Jake Gilbreath: So that’s going to be very stressful for both sides. If you’re going in and there’s an emergency, and you’re asking for a restraining order, that’s stressful, right? Because you got to support it by affidavit and evidence. Of course, it’s really stressful for the other side because Brian, how many times have you had a situation where you get hired, and there’s a restraining order issued against your client, and you get the affidavit, you see what they told the judge without you there, and they’re coming in at the consult going, “This is all BS,” or, “95% of it’s BS,” or, “It’s just blatant lies,” or, “It’s not true.” I mean, we almost get those more often than actually legitimate restraining orders sometimes it feels like. And I think you were dealing with that just as recently as last night. So that situation look like?
Brian Walters: Yeah, exactly. I mean, well, that was even worse because it didn’t have the required affidavit, and somehow the judge signed it anyway so that was exciting. But yeah, you initially read these affidavits a lot of times. I often read them. I’ll gets so often you’ll read them say, “Holy cow.” First time I’m about to talk, they’ve got some issues. And you start talking to them and they’re like, “What? This doesn’t make any sense. I have one beer a night at dinner. I’ve never been drunk, or I’ve never been arrested for drinking and driving or whatever.” And the other side’s accusing of being rampant alcoholic or something like that.
Brian Walters: So all those things are concerning. That’s absolutely the case and you just have to take it… I mean, the other side’s got to prove if there’s those problems. So you can go into court at times, and you can ask the court to dissolve the temporary restraining order before or sooner and before there’s a hearing. Although generally if it’s within 14 days by the time it’s been signed, served, they’ve hired you, now you’re going to have a hearing in the near future, usually that’s probably about the right amount of timing. But I have seen them get dissolved or attempted to get dissolved, that’s always an option as well.
Jake Gilbreath: Yeah, it’s a frustrating time, that sort of gap between you get served the restraining order and it could be a week or two weeks before you have a hearing. I mean we did one a month ago. I mean, we actually got hired, the restraining order got signed, hearings starts within 14 days. I think we got hired eight days later or something like that. But a frustrating time. I mean, we’re looking at, the client is looking at us like, “This is just a lot of crap.” I mean it was. And within four or five days, I mean there was three, I think, three witnesses referenced in the affidavit of things that they were supposedly going to come in and say. We had all three of them subpoenaed, all three were ready to testifying and come in and say, “That is not true.” We had recordings, we had expert lined up, we had everything within four or five days and just blew it out of the water.
Jake Gilbreath: But it was a frustrating time though for the client that really frustrating. And she’ll probably get her fees back at the end, but it was really frustrating because if you’re at court, what’s difficult is if you’re defending against a restraining order, if you’re at court and you get an affidavit, even if your antenna’s up that this seems a little embellished, you’ve got to take it as true, right? They’re going to be more careful than not in most situations. And no judge wants to ignore a claim of danger, and then find out that it’s true and they haven’t stepped in, she hasn’t stepped in and done something. So both sides, it’s hard on both sides. And again, it’s hard on the side if you’re asking for the training order. You got to kind of put your case out there.
Jake Gilbreath: A lot of times we get hired in this need for a restraining order or protective order. We’ll talk about that in just a second. And I mean, we’re cranking out pleadings that day. I mean, there’s times when people come in and hire us at 9:00 AM in the morning and by two o’clock we’re in front of a judge with a multipage affidavit and reports and pictures or exhibits or whatever asking for a restraining order. So it’s hard and stressful on both sides, but really important because until a judge can have a hearing from filing a divorce or custody case to when there’s a hearing, a temporary order hearing, that’s a really high stress, dangerous time that a lot of stuff can happen unless it’s addressed appropriately by the lawyers.
Jake Gilbreath: So that’s restraining orders. And people get restraining orders confused with a different topic, which we can do a whole podcast on, but we’ll sort of talk briefly about what it looks like, and that’s protective orders. So restraining orders restrain somebody from doing something like maybe being around the kids or driving with the kids or moving money or selling something or what have you. That’s a restraining order. Then there’s a protective order. When there’s family violence in place, the court can issue a protective order. And there’s really three types of protective orders that we see. The first one that we see is something that’s called an emergency protective order or a magistrate’s protective order.
Jake Gilbreath: So when somebody’s arrested for family violence, outside the family court system, the magistrate can issue what’s called an emergency protective order. So let’s say that husband’s arrested for assaulting the wife, he’s taken down to jail, they’ll issue an emergency protective order that the wife has that says, “For 60 days or 90 days, here’s the order. He can’t be around her or maybe around the kids or near the house or what have you.” That’s outside the family court system. And usually you see it when there’s been an arrest, usually that’s when you see it. And that’s outside of our system, that’s in the criminal court system. And so that’s a different issue than what we see in the family loss system.
Jake Gilbreath: And then when people come to us, the family code authorizes the filing of a protective order. And that’s something that we… So it sometimes, and that’s under Title Four, excuse me, Title Four of the Texas Family Code of what we’re dealing with. And sometimes there’s an emergency protective order, EPO issued by the magistrate. A lot of times there’s not, right? Because a lot of times with family violence, the police haven’t been called, or charges haven’t been brought or what have you.
Jake Gilbreath: So in that situation, there’s two protective orders, the two types of protective orders under Title Four, The Family Code One. And all of it is filed under an application for protective order. But the first thing that you see when a protective order is filed is most of the time when a protective order is filed, there’s a request for, it’s called an ex parte protective order. So you have your EPO admissioned by the magistrate, and then in the family court system when you file for protective order, there’s what’s called an ex parte protective order. So I’ve been talking a lot, Brian. Tell us kind of what an ex parte protective order is.
Brian Walters: So ex parte just means sort of what you mentioned with restraining orders that only one side gets to present their version of events via an affidavit. And then the ex parte protective order then means it’s also temporary, and it’s shorter in length, and the goal is to be protective rather than to restrain things. And some of that overlaps. I mean, restraining orders typically say don’t harass, in a way or whatever, the other side don’t threaten anything like that. But protective orders is typically much more, the ex parte ones are much more specific about dangerous or threatening behavior that can involve restrictions on gun ownership. They can involve restrictions on where you can and cannot go. So don’t go near work, don’t go near their home, that kind thing.
Brian Walters: So it’s generally a different focus. There’s generally not a financial focus. There’s actually provisions in those that are protective of pets is a new thing. So little different focus. Sometimes you can obtain, in less dangerous, less threatening situations, some of those same protections in a restraining order. But there are certain cases where you just need a protective order, especially when there’s been recent violence or threats of violence. There’s just no way around that if you want to protect your client. And by the way, those protective orders can be protective of not only the person filing them, but also other family members as I mentioned, even pets, but even children.
Brian Walters: And that can get a little confusing at times because if you have a child with somebody the protective order’s against your married or otherwise, you might want to be protective of the children if you think they’re at risk, which kind of affects custody, which is more of family court. And usually the courts figure out how to do those things without them overlapping each other. But same concept that’s issued with only one side of the story. We certainly have plenty of them that come in that are totally valid and hundred percent are needed. Others that come in that we defend, and you read these things and you’re like, “You’re grasping at straws or you’re making stuff up, you’re exaggerating situations.”
Brian Walters: And those are real and they’re real serious. I mean, protective orders are not… It’s not a criminal offense if it’s granted, but it has some of the same effects. I mean, it goes into a database where just a restraining order and a divorce, the sheriff doesn’t know that it’s been filed or not versus a protective order. So it’s a serious thing. And sometimes you get hit with both of them. That is not unusual either that you get a restraining order and a divorce or a custody case, and then a protective order in a protective order case. And maybe there’s been an arrest too. So now you’ve really got three cases going on at the same time. It can be quite the situation when those occur.
Jake Gilbreath: Yeah. And extremes on both ends, right? I mean, like I said, there’s ones are absolutely legitimate, needed, dangerous situations for the spouse and the kids, parents, family members. And unfortunately it’s, we all hate to think that this happens, but we see it all the time. Unfortunately, there’s situations where it’s just not true or it’s embellished or frankly there’s situations where it’s both sides or everybody’s got something that need to work on. But it goes back to that important thing is with the ex parte protective order, same thing like a restraining order. It has to set a hearing and you will have a hearing. It’s actually 20 days into the ex parte protective order statute. But usually I see courts try to do it within 14 days, same deal. You have the right to go and request the court to dissolve an ex parte protective order.
Jake Gilbreath: But there’s still this sort of frustrating gap between the ex parte, other side’s not notified, the order being issued, and then there’s a hearing and there’s evidentiary hearing. All this stuff is always going to result in evidentiary hearing. There’s not going to be a more permanent order that’s ever issued by a court without there being an evidentiary hearing or both sides are heard. And so that brings us to the third type of protective order is your EPO. That’s just your emergency protective order outside the family court system magistrate issues. There’s your ex parte protective order, that’s in the family court system that can get issued with the support of an affidavit right off the bat when an application for protective order is filed.
Jake Gilbreath: And then once you have that evidentiary hearing, which again is typically 14 days after an ex parte protective order’s granted or requested, most of the time granted. Then you have the protective order hearing where there’s evidence heard on both sides. And then at the end of that, if the court finds, then it’s two prongs, that the court finds that family violence has occurred. Protective orders were always talking about family violence. Family violence has occurred and that it’s likely to occur in the future. It’s two prongs. And a lot of times we forget that second prong, but if the court finds those two things, then the court could issue a protective order.
Jake Gilbreath: And there’s also stalking protective order in the Code of Criminal Procedure that you can do that has some that essentially if there’s stalking, which is the type of family violence, the court could also do a protective order. Usually you see the family violence has occurred and likely to occur in the future. The court finds that then they can issue a protective order up to two years. In some instances it’s serious bodily injury or there’s been more than one protective order, various instances, and the court can actually to go beyond two years. But the most typical, you’ll see a protective order in place for two years. But you got to find those two prongs, family violence has occurred, it’s likely to occur in the future.
Jake Gilbreath: If that’s found by the court protective order can be issued. And then that’s a really serious order. It’s going to have some really specific restrictions on the person against whom the protective orders issued. It could require counseling. There’s going to be provision that the person who has to protective order against them can’t have guns. It could affect custody, obviously. It affects where people can be around each other. It’s a really serious order. And it’s enforceable by not only contempt of court, but it’s enforceable by arrest in criminal charges.
Jake Gilbreath: So if you violate a protective order or an ex parte protective order or a two year protective order EPO, that has criminal implications. So they’re very serious orders on both sides. The person requesting it, for the person defending against it. Probably the most serious thing that we see in the family law context. So all that to say, obviously a need for the procedure to be able to get protective orders, obviously the need for there to be a hearing so both sides can be heard, and then the court’s going to do what she thinks is best at the end after hearing all the evidence. But as you can imagine it kind of it all comes down to is it’s important to take these things really seriously, and frankly, hiring a lawyer that has experience with this, either way you’re looking at it. If you’re looking for applying for a protective order or defending, it’s a protective order.
Jake Gilbreath: Again, there’s not much more serious things that we do on both sides in the family law context. So that’s kind of the overview. Restraining orders, you’ll see there’s kind of your really basic standard restraining orders up to your more extreme that excludes specific acts based on specific requests to the court. And then you have your other world, which is your protective orders that can have both a criminal and a civil component of it. So that’s big, broad overview. Of course there’s more to it, but I think that covers a broad overview, of those two topics. So that’s what we have for today. And as always, if you like what you heard, please leave us a review, and feedback is always helpful for us. If you have any feedback or you want to ask questions or you want to suggest a topic, we’d love to hear from you. You can email us at email@example.com. And I’m Jake Gilbreath here with Brian Walters. And thank you all for listening.
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