Transcript

Shailey Gupta Brietzke: It is important for that victim to be able to understand what are the steps that are going to happen and what is the process they’re going to be under. Because sometimes that does kind of cut out some of the folks who make claims in the sense of trying to get an advantage in court.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Shailey Gupta Brietzke as our guest on the Texas Family Law Insiders podcast. Shailey is the principal owner of Shailey Gupta Brietzke PLLC in Houston, where she represents individuals and children in a variety of Family Law matters. Shailey was inspired to go to law school while working at a domestic violence shelter. She received a fellowship to work with AIDS victims of domestic abuse out of law school, during which time she provided direct representation to survivors of domestic violence.

She also testified on a number of bills in the Texas Legislature related to domestic violence survivors. Shailey worked with AVDA’s executive director to create the first domestic violence court in Harris County in 2009. Since then, Shailey has become board certified by the Board of Legal Specialization in family law, and has worked in private practice representing those accused of family violence or child abuse and survivors of family violence or child abuse. Shailey also has served as an associate judge for the 309th Judicial District Court in 2019. Thank you so much for joining us today.

Shailey: Thank you so much for having me, Holly.

Holly: So why don’t you start by telling us a little bit about your background in family law?

Shailey: Well, Holly, I have had a very diverse background in family law. I started my career working at a domestic violence agency representing victims of domestic violence pro bono. After that, I moved to the Harris County Domestic Relations Office where I handled a variety of child support enforcement types of cases, including enforcement actions, child support review conferences, possession and access enforcements and really learn the ins and outs of enforcement actions. And then I went to work in private practice, where I handled a variety of cases, from start to middle to finish, contested and uncontested cases, and spent some time on the bench as an associate judge. And now I’m back in private practice. And so it’s been kind of representation from all angles.

Holly: So how would you describe your current practice?

Shailey: Right now I handle cases in the Greater Houston area, contested and uncontested cases representing spouses, parents, non parents and children. I also serve as a mediator appointed by some of the courts here in Harris County, and also agreed upon by parties and lawyers. And I also do a little bit of appointed work where I do some CPS work and some contempt defense work in the Harris County courts.

Holly: So I have actually gotten to know Shailey through several appeals that we’re working on together. So I’ve really enjoyed getting to know her over the last several months or so. And I’m excited to have you on the podcast today to kind of share that with everyone else.

Shailey: Thanks, I’m really excited to be here. It’s been a pleasure to kind of get to know folks that are outside of the Greater Houston area, and to kind of connect over our bond of our love of the law.

Holly: So today, we’re here to talk about domestic violence issues. Why are you so passionate about this area of the law?

Shailey: Well, it all stems from being an undergraduate student at Texas A&M University. And one of the things that I did while I was there was that I did an internship with a domestic violence agency called Phoebe’s Home. And part of that work was working in a domestic violence shelter. And in working with those survivors, I learned that the biggest decisions in their lives were not being made in criminal court. And were not being made in civil court. They were being made in family court.

And a lot of the survivors did not have really great representation. People that understood what they were going through, and were being effective and telling their stories. The decisions that were being made were about what type of frequency they would have with their abusers. What type of parenting plans would be in place, what would be the financial support that they would receive? And all those factors played a big part in how they would be set up to move on with their lives. And so I was really inspired to be able to use my skills to be able to tell folks stories in a way that hopefully created change in communities.

Holly: So what do you think makes representing DV victims different from representing others in the family law context?

Shailey: I think that on the whole, they can be extremely challenging cases. I feel like family lawyers want to be able to go in and help people through a difficult time. I think that’s a combination. And how we approach the work that we do. We all have that big heart where we want to help someone through a really challenging and tough time. And I think we also have a tendency to take on more than we can handle, sometimes. With domestic violence cases, there is a struggle, a push and a pole between the logical side of trying to figure out the next steps in a case strategically, and then the emotional side of being able to explain and empathize with your client who’s in front of you going through a very difficult situation.

Domestic violence, survivors need a lot more of that emotional handholding, then some of our other clients. And sometimes someone will walk into your office, and they will seem very well put together very well prepared and very ready to take this on. But as you kind of peel back the layers and getting to know them, and understand the type of relationship they’re leaving, you start to realize, oh, wow, there could be a lot more here. And maybe they’re not quite as grounded and stabilized and ready and confident to make this next step in their life as they originally said they were. And so sometimes, you know, it means that we have to spend a little bit more time, we have to have a lot more patience, we have to spend time preparing our clients for what’s going to happen, we have to kind of be able to come back to hey, I said that this was going to happen.

And that was going to happen. And guess what this happened. And that happened to try to help reaffirm that we have knowledge and we’re on their side. Also, the most important thing I think, is building that trust with your client early on, and kind of continuing to come back to that whenever needed. And so it can take a lot out of you. It’s definitely a tough type of case to handle. And so I’d say definitely use caution if you’re jumping into one of those cases.

Holly: And kind of the flip side of what you said where, you know, people can come in and seem ready to tackle this and seem like they have everything together. I think we also see a lot of people who don’t even tell us that there was domestic violence, or they don’t want to talk about it. It’s you know, they’re embarrassed, they feel like it was their fault. Or for whatever reason, they are not waving the flag that, hey, I’m a victim of domestic violence. So when you have people like that, are there any red flags or kind of tells that we can look for as attorneys to try and recognize that maybe there’s something there?

Shailey: That’s a great question. I think that there are clients who come in and say, I was the victim, I was abused, let me tell you everything that happened. And then there are clients who really hold back. And I think it’s important to recognize the reasons they hold back. A lot of victims are told repeatedly throughout their relationship, nobody is going to believe you. You don’t have anything to be upset about or angry about, I didn’t do anything wrong. It’s your word against mine. And those things ring true, and really affect whether or not someone is going to feel trusting enough to tell you what’s happened, and whether or not they think that you’re going to believe them. I think that it is challenging to figure out kind of what are the absolute list of red flags that would help you figure out whether or not there’s something there.

But I do think that if I have a client, who is somewhat wishy washy, like tells me one day, I want to go forward, and I want to go to court and have a hearing in front of the judge. And then the next day they say, I don’t know about having that hearing. Are you sure you want to do it? Is it is it really set? Do we really have to go forward with it? That’s a really telltale sign that there’s a lack of confidence. And they have they lack in confidence in either themselves, or in the process or in me, that’s making me go, hey, we need to sit down and regroup. What is really going on? Why do you feel so shaken by the steps that are kind of moving forward. The other things that I try to look for are financial isolation. So someone that hasn’t had an opportunity to work or a capacity to work or an ability to earn money on their own often speaks to maybe there is some element of financial abuse going on.

Meaning that someone doesn’t have access to resources to be able to provide for themselves or for their children, and they’re solely dependent on their spouse. Another factor that is sometimes often a red flag is someone who is particularly isolated, if they don’t have any support network, any friends, family, neighbors, church community in any way, shape, or form. That’s often a pretty big indicator that there’s some sort of element of abuse or control that’s going on. And really just kind of being open and honest, I think it’s sometimes fair to say in meeting with a client for the first time, everything that you say is going to be confidential. Everything that you tell me is not going to be shared with anybody else unless you’re ready to do so.

Kind of giving some of those assurances and putting words into play and actually calling those things out. Sometimes it’s really helpful to help build some trust and also understand that you may not get all the information all at once. You know, because I’ve sat with clients who have had PTSD, who have had a difficult time recounting specific incidents or things that have happened or periods of time, even six months, nine months, during a particularly volatile time in their life, where we have to sit and go through. Okay, so what happened in October, what happened around Halloween, what happened at the holidays and Christmas, to try to recreate and understand kind of what they went through and what was going on in their lives.

Holly: So sometimes the person who’s claiming they have been abused, really wasn’t abused. And we see false allegations, more often than one might think in the family law context, people use that as a threat or weapon to try and get what they want. What are some signs to look for that it may not be a legitimate claim.

Shailey: So I think it’s always important to let me say this, again, in working through these types of cases, there is a push and a pull. And I was the one who truly tries to have survivor centered advocacy and survivors that are legal representation, I want to believe the person who comes and talks to me. In my heart, I want to believe that everything they’re saying is true. I want to empower them to be able to make decisions about their lives. But the pull is that I’m also a lawyer. And I know that we’re going to be going into court and in front of fact finders and in maybe with opposing counsels, and mediators to try to evaluate this person and the claims that they’re making.

I think it’s fair to be open and honest with the client sitting across from you about the scrutiny that they’re going to undergo in moving forward with their case. I always try to be open and transparent about that process, because it is important for that victim to be able to understand what are the steps that are going to happen? And what is the process they’re going to be under, and what is the microscope that they’re going to be kind of wiggling after, because sometimes that does kind of cut out some of the folks who make claims in the sense of trying to get an advantage in court. I will say that as a family law lawyer and as an attorney, and as a judge, it happens.

And the difficulty about it happening with false claims being made is that it makes it a lot more challenging for some of those other folks to come forward. And so I feel like as a lawyer, I have a vested interest in trying not to promote those false claims moving forward and finding a way to call those things out. And finding a way to say, hey, this isn’t really going doesn’t make a lot of sense. I think as a lawyer, you also owe your clients the opportunity to say, hey, what you’re saying doesn’t add up. And this is how it doesn’t add up.

Can you tell me more about this, it doesn’t mean you have to say I don’t believe you. And this never happened. But I think it’s also fair to say, hey, I’m going to ask you some of the tough questions that I think the judge is going to have and that the opposing counsel is going to have and maybe the mediator is going to have. And you can do it in a thoughtful way. That’s not kind of rude or aggressive. But I think it’s it’s fair to have those questions. And it’s fair to present to your client, kind of what the path forward is going to look like.

Holly: So you have been instrumental in helping to create the first domestic violence specific court in Texas, in Harris County. Can you give us kind of the background of how that came to be and what that court does?

Shailey: Yes. So when I was working at AVDA, we handled a number of matters, mainly family law related, and we had two main components of our legal advocacy program. One was focused on obtaining protective orders for victims. And then the second was focused on extended services, which would be divorces and custody cases and modification cases. The system that was in place in Harris County, prior to 2009, was that each month each of the family courts would hear protective orders. And at that point in time, there were eight family courts in Harris County. And that meant that if you went to family court in January, you would have one judge that would hear your case.

And if you went to family court in March for protective order, you’d have a completely different judge that would hear your case. And sometimes that meant there was a lot of inconsistency in whether or not protective orders will be granted or not. And also, there was a lot of back and forth with the judges about whether or not courts would clear their dockets in order to handle the protective order cases. What ended up resulting was that some courts would just put off hearing those protective orders, and those victims would come back to court for 2, 3, 4, 5 resets, sometimes 4, 5, 6, 7 months after their initial application to have their hearing on their protective order. What we saw was the person, the applicant who came to court with four witnesses, and three family members, the first time never ended up at the fourth or fifth time with the same level of support in that courtroom.

And they were, they were kind of being whittled down in terms of what their claims were, and whether or not they truly wanted to pursue this. And so the purpose of that court was to help fast track protective order cases to be heard efficiently, effectively and quickly. So that victims could get in and out of court and either get a protective order or not get a protective order, but be able to make decisions to move forward with their lives within a reasonable timeframe. And so that was the initial goal. The the legislation that created that court also dreamt a little bit about what that court could live up to. And the idea was going to be that possibly that court would hear domestic violence cases where there was modifications or divorces, or sapcr cases.

There’d be one fact finder, who had a much more limited docket who could hear those cases and not require multiple resets. Additionally, this happens occasionally, that there are domestic violence fatality cases where one spouse or ex spouse hurts or murders the other spouse, or other parents. And those cases are highly emotional and have a lot of moving parts. And often are kind of a place where there are a lot of pieces on the ground that need to be picked up and gathered together to help ensure safety for kids. And it was the goal that this court would be able to hear those types of cases and give the attention that those cases drastically need in the wake of such a tragedy. And so that was kind of the big purpose of why that court came to be and some of the goals and aspirational goals that that court should eventually maybe live up to one day.

Holly: So have there been any unintended consequences associated with creating this court?

Shailey: That’s a great question. I mean, I think it’s interesting, because when the decision making when that fact finder for that judge is making decisions about the case, the pendulum has swung both ways over the last 10 years that that court’s been in place. It’s gone back and forth from having judges who are extremely hard on victims, and are unlikely to want to grant protective orders. And it’s swung the other way to where there’s been protective orders granted in a lot of cases with with judges who truly believe every victim that comes forward and has a valid claim and makes the request.

And I think the unintended consequences are that it sometimes creates distrust with the public about whether or not a protective order is really meaningful. And whether or not the person that’s getting a protective order is truly credible. I think it’s created some distrust with the remainder of the family law judiciary in being able to give full faith and credit to the protective orders that have been granted. And to really truly say, has this court truly adjudicated whether or not there’s been a family violence claim.

Is this finding truly representative of well established rules of procedure and evidence? Was their due process? You know, were there infringement on constitutional rights? And those are all really important questions. I think every judge who has has has been on the bench in one of the family courts knows that if there’s a bad decision that’s made in the 280th, the first thing that’s going to happen is it’s going to land on their desk with a bunch of emergency motions, and a lot of time, asked for by the lawyers to try to correct or wrong or try to fix the mistake.

And so I think those are some of the challenges. I think another challenge is that protective orders are a solution that were that was created many decades ago. And whether or not it truly and accurately helps domestic violence victims now is a is worth considering. And has the law evolved in a way that has met the kind of changing needs of domestic violence survivors, you know, in this decade, I think is also a worthwhile thing to think about a little bit.

Holly: So when we’re dealing with protective orders, whether it’s in a place, you know, it’s a specialized court that only hears those or whether it’s, you know, where I practice, generally the same court will be hearing the sapcr or the divorce, the modification and the protective order they went though, those filings will land in the same court. But the timelines are very different for a protective order case than they are for a divorce or modification or an original sapcr.

So what I often see, we’ll have a temporary orders hearing and a protective order hearing together. Where, you know, you may get 20 minutes a side you may get an hour a side. But you certainly don’t get a full day or anything of that nature. What advice do you have for attorneys in preparing for the much shorter timeline, and probably the much shorter amount of time to present the case in a protective order as compared with those other types of proceedings.

Shailey: So I think it’s really important to, to prioritize what you bring forward and how you utilize your time when you have such a limited timeframe. Any way that you can truncate a presentation of information to the court and to the judge, is a benefit to you. So things like business records affidavits, and making sure that you can get some of those things into evidence can certainly help your case significantly. I think also being able to adequately prepare your client for direct and cross examination is key, mainly because if you have a limited timeframe to work with, every question matters, and every minute matters, every objection, non responsive matters.

So being able to kind of preparation, I think, is really important with those limited timeframes. With a protective order, you’re only working with two elements, and then whether or not you have an enhancement related to the duration. And so the two elements are whether or not family violence occurred, and whether or not family violence is likely to occur in the future. And so my secondary piece of advice is, is pick your battles, right. If you think that you don’t have a particularly strong way to combat the allegation that family violence occurred, figure out how to deal with family violence in the future, and focus more of your time and energy on that prong as opposed to the first.

The other thing that I think is worthwhile in terms of thinking about it in a comprehensive standpoint, is that if you have more elements, more issues that are on the table, maybe there’s more way to negotiate, and work out and agreement on parts of your case. Sometimes protective orders are challenging when they’re in a vacuum, because you really only have those two elements and then a duration. But if you are working with conservatorship, possession and access child support, you sometimes have some other ways that you can go and other elements that you can kind of bring in that may be helpful to tailor a specific solution for your client and your case.

Holly: So prior, you and I have an appeal related to a protective order, and that has really opened my eyes about the differences in the standards on protective orders and custody cases and how attorneys, courts can kind of get around some of the protections that are within the family code for custody cases, in a protective order. And I think a lot of attorneys is probably not on their radar at all to look at issues like due process, and constitutional issues. You know, in a family case, even the worst of the worst, usually somebody is getting at a minimum, some supervised access.

And it takes a long time to get to a final trial there and get that result. But somebody can go in and a protective order and then a matter of 30 days or however long it takes them to get to a hearing, wipe out somebody’s access completely for years. So I think that’s a really interesting and important issue for attorneys to be thinking about when they’re representing people and for attorneys involved in legislation to be thinking, whomever is involved in that to be thinking about going forward of how do we balance that? How do we protect the rights of victims, and also protect the rights of the accused?

Shailey: It’s a great challenge. I mean, I think that that is the biggest issue that faces the current protective order court in Harris County is is whether or not those rights are balanced and how to balance those effectively. You know, I think that it is also challenging in this world that we’re in to find a way to negotiate different relationships and how those play a part in in kids lives and families. You know, I think it all depends on kind of what your perspectives are. And I think in family law, right, our perspective is that if someone is a parent, they have certain rights, and they have certain rights that are afforded to them by the family code, and they have certain constitutional rights.

And even if they’re violent or abusive, or are a victim of someone being violent or abusive towards them, they’re still afforded those rights. And so I think there are definitely some challenges in how courts are looking at those rights, and how courts see domestic violence impacting families and particularly impacting children. And whether or not judges are truly well aware of kind of what the impact is of cutting off contract completely. What are the issues that it creates for the that family and those children and whether or not those are sustainable outcomes? I think ultimately, you know, part of what we do that’s really challenging is that we end up in court arguing about big picture questions that really truly impact how families grow and develop and how kids grow and develop when there is the need for court intervention.

And if we’re in a position where courts are making some of those decisions in ways that are hurting all the players involved, even unintentionally, we are the ones that feel the brunt of it, right? We’re the ones that have clients that come back to us and say, hey, this protective order that was granted doesn’t work, or my kids still do want to talk to their mom or see their mom or have a relationship with this other family member. And how do we negotiate that in a way that creates a solution for this family, instead of further conflict with the court system in some way, shape or form?

Holly: So if somebody’s in Harris County, or I don’t know if there are any other courts like this out there yet, or if this is the only one, but if someone receives a protective order in the domestic violence court, can they then go get access in the family court? Or is the protective order going to trump that?

Shailey: It’s a good question. I think it depends on the duration of the protective order. And I think it also depends on whether there’s possession and access provisions in the protective order. My position is that protective orders have what is like emergency jurisdiction and that if there’s an order that’s issued, that creates periods of possession access, it does not create a court of continuing jurisdiction, that then has to hear conservatorship, child support and all the other issues that a court of continuing jurisdiction would hear.

And that the provisions for access that may be in a protective order are temporary in duration and emergency in nature. But the question then is is begs is what happens when there’s some sort of lifetime protective order that has provisions for possession and access that go on until a kid who’s 10 turns 18? And is that really emergency in nature, or limited in duration, as I believe the code intended it to be.

Holly: I agree. So, we’re almost out of time. But one thing I like to ask all of my guests on the podcast is, if you could give one piece of advice to young family lawyers, what would it be?

Shailey: I have two pieces of advice, actually. The first is to be prepared. You can always make up ground for someone who has more years of experience by being extra prepared. I used to very early in my career literally fall asleep with my family code on my pillow, because I would be looking over the provisions that I would have in relation to the case I had the next day. And so you can always make up a lot of ground by knowing your case law by knowing your statutes by being able to cite the code provisions when you’re in front of a judge.

And the second is to be fearless. To have the confidence to know that you’re smart enough and you’re capable enough to handle these types of cases and to do this kind of work. And to not be afraid to kind of push back on the opposing counsels you may have the difficult pro se parties on the other sides of cases and sometimes the judges that you’re in front of, there’s certainly ways to do it respectfully and authoritatively. And I would definitely give you that advice is to be fearless in that regard.

Holly: So one last thing, if our listeners would like to go learn more about you, where could they do that?

Shailey: So my website is sgblawtx.com. My phone number is 713-396-0251. And they can definitely just do a Google for my name. Everything that comes up with my name is back to me because I’m so unique. So certainly, that’s the best way to get ahold of me.

Holly: Great. Well thank you so much for joining us today. Hopefully, we got some good information for people on protective orders and domestic violence. And for our listeners, if you enjoyed this podcast, take a second and leave us a review and subscribe to enjoy future episodes.

Shailey: Thank you so much, Holly.

Voiceover: That Texas Family Law Insiders podcast is sponsored by the Draper Law firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.Draperfirm.com