Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

CPS

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Often times family law cases involve one party with pending criminal charges.  I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter.  If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.

If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney.  If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter.  Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify.  For one, the party’s testimony could be used against him or her in the criminal case.  If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction.  Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.

The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case.  While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case.  If one party pleads the fifth, the judge can hold it against that party.  As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved.  Once the criminal case is resolved, that party is free to testify in the family law matter.  That testimony can no longer be used against him or her in the criminal case.

Juvenile Defense

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A request for a protective order can be made under the Texas Family Code by any family member, a member of a dating relationship, a third-party victim who is harmed or threatened because the victim is dating or married to a person whom the offending party used to date or be married to, a prosecuting attorney, the Texas Department of Family and Protective Services (aka CPS), or any adult for the protection of a child.  You can request a protective order for yourself or on behalf of another party.  A protective order is considered “ex parte” if it is obtained without notice to the other side.  An ex parte protective order is only temporary.

To obtain a protective order, the party seeking relief (the “applicant”) files an application for a protective order along with an affidavit.  The affidavit attached to the application must describe in sufficient detail the facts related to the alleged family violence.  It must also explain why there is a need for immediate protection.  If the applicant and the respondent live in the same home, the application can include a request for a “kick-out” order.

In the application, the applicant can request an order prohibiting a variety of actions, including family violence, certain communications, going near a residence, place of employment or the child’s school, going near the applicant, or possessing a firearm or ammunition.  A protective order can even be used to protect pets.

In order to grant the temporary ex parte protective order, the judge must find the affidavit shows a “clear and present danger” of family violence.  If the facts are sufficient, the judge will sign a temporary protective order “ex parte” and set the matter for a hearing.

If the judge signs a temporary ex parte protective order, the order must include a notice to the respondent to appear on a specified date for a hearing on whether or not the temporary order should be made into a final protective order.  The court must set the issue for hearing no more than 14 days after the application is filed.  An ex parte protective order can last no more than 20 days, unless an extension is granted.  An applicant cannot be charged a fee for filing an application for a protective order.

If you or anyone you know is experiencing domestic violence, please seek help whether it is through an attorney, a shelter, a domestic violence hotline, or any of the other numerous resources available to help domestic violence victims.

stop-domestic-violence

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