Who qualifies for a temporary protective order, also known as a TPO? How to you file for one? Learn the answers to these questions and more now.
Most couples don’t enter into a marriage with the thought that it will end in divorce. If there are children involved, the divorce process becomes all-the-more trying. It’s no secret that divorce cases that involve contested child custody take far longer to process, and rightly so. The court has a duty to determine what is best for your child.
If you or your child has suffered from violence at the hands of a partner, you may want to protect yourself or your children during this lengthy process. This is where a temporary protective order could provide the peace-of-mind you need.
But how does a protective order work and who exactly does it protect during the divorce or child custody process? To learn more, this blog highlights what you ought to know.
What Is a Temporary Protective Order?
It’s important to note that either party in a divorce and child custody case can file for a temporary protective order. Even if you weren’t the one to file for divorce. You will have to file a Motion for Temporary Orders with the court, which then proceeds to a hearing.
However, if the judge determines that any family member is in immediate danger, they will issue a temporary protective order, without a hearing. This order usually lasts for a period of 20-days.
If there is a hearing, a judge hears from both partners to get an idea of both sides of the story. From there, the judge makes his/her decision about granting a protective order. A temporary order can include a protective order, restraining order, or an order of protection and must be filed in civil court.
A protective order is most commonly issued in cases of domestic violence, especially in cases of child abuse. As outlined by the Texas Family Code §§ 85.021 and 85.022, protective orders are granted when:
The court finds that there is a clear and present danger of family violence. In this case, the court will issue a protective order to the alleged without further notice or a hearing. This is also known as a temporary ex parte order.
A temporary order only lasts until the judge grants their final verdict on a protective order.
Who Qualifies for a Temporary Protective Order?
Now that you know a little more about what a temporary protective order is, who does it actually protect? In Texas, it protects any person that qualifies as a family or household member, such as:
- Blood or marital relatives
- A former spouse
- Same-child parents
- Foster parents
- Roommates or individuals living in the same house
If you or your children are victims of domestic violence, or are regularly threatened with violence, you may qualify for a temporary protective order. This also applies to dating violence and threats to your well-being in a dating relationship.
What Is the Protective Order Filing Process?
In order to file for a protective order, you’ll need an attorney in your county with first-hand experience in family and divorce law. You must file your protective order in the county where you live. You then become the petitioner, complainant, or applicant.
The person you are filing against is the respondent. Any of the following applicants can file a protective order in the state of Texas:
- The Texas Department of Health and Human Services for family violence
- Your prosecuting attorney on your behalf
- Any adult member of your household or related family
- An adult on behalf of a child
As soon as you submit your protective order, a judge sets your hearing date within 14-days. Unless, of course, they determine that you face an immediate threat of danger. This is when they issue a temporary protective order.
As mentioned, this order is valid for a period of 20-days, while a protective order is generally valid for 12-months.
What Happens During the Hearing?
During your protective order hearing, both parties — the applicant and the respondent — must be present. The judge hears both sides of your story. They will also cross-examine witnesses or other parties willing to offer evidence.
Bear in mind that if the respondent does not show up in court for the hearing, the judge will issue a default protective order anyway. If you (the petitioner) fail to attend court, the protective order filing falls away.
What Are the Terms of a Protective Order?
The Texas Family Code §§ 85.021 and 85.022 is designed to offer as much protection as possible when a judge grants a temporary protective order. It includes very serious conditions and the offender must abide by specific regulations.
Some of the basic regulations mean that the offender cannot threaten any family or household member with violence. They cannot commit any further acts of violence, either. They cannot own or possess a firearm, or go to (or near) your residence, child-care facility, or school of a child under protection.
They are also prohibited from visiting the residence of anyone else protected by the order. They cannot visit your place of employment or business or communicate with you or any other family member, unless through an attorney.
A protective order may also include the following terms:
- The offender must relinquish the use or possession of a leased property that is jointly owned
- It is a requirement to pay spousal or child support to you or any other family/household members
- Forgo all parental rights to any child — whether related by blood or family
The state takes child protection extremely seriously. So a temporary protective order related to child safety includes its own set of stringent rules. Some of which relate to:
- Temporary visitation or possession
- Paying child support on a temporary basis
- Forgoing temporary conservatorship or custody
- Health insurance provision
A temporary protective order is subject to change by the judge. Compared to when they initially issue the order, some of the terms could be intensified or reduced in the final protective order. But this depends on the hearing process and the judge’s findings.
What Are the Consequences of Violating a Protective Order?
Violating a temporary protective order, or the terms of a final order is a criminal offense. Under the Texas Penal Code § 25.07, offenders could face a charge of a class A misdemeanor or a third-degree felony.
However, in order to qualify for these charges a respondent must commit these acts:
- Possession of a firearm
- Threatening anyone protected under the order
- Aggravated assault or domestic violence against a child or any family/household member
- Sexual assault against a child or family/household member
- Other means of prohibited communication as outlined by the order
- Visiting or getting too close to a school, or child care facility
- Visiting or getting too close to a home, business, or place of employment
The rules and stipulations of a protective order are binding and aim to provide as much protection as possible to those who need it.
Bear in mind that a class A misdemeanor carries a hefty fine and a potential 12-month prison sentence. While a third-degree felony carries a potential 2-10 year prison sentence under Texas law.
How Is a Temporary Restraining Order Different?
Most people have probably heard about a restraining order — but how is it different from a protective order? If you are not issued with an immediate temporary protective order, you can apply for a temporary restraining order (TRO) before your hearing.
This is helpful if you live in fear of the respondent harming you, a child, or any other family member before your temporary order hearing.
In short, a TRO qualifies as an emergency court order. Its aim is to ensure a person (the respondent) does not commit an action that could be harmful, until your protective order hearing. A TRO lasts for a period of 14-days, or until the date of your temporary order hearing.
In order to qualify for a TRO, you’ll have to file for a Motion for Temporary Restraining Order. This is also called a temporary injunction. You’ll also need an affidavit explaining why the TRO is so important and urgent.
Most TRO’s include the following restrictions:
- Necessary protective orders that protect your safety, children’s safety, and property safety
- A TRO orders a parent/person to keep away from a child until a temporary order hearing
One of the main differences between a TRO and temporary protective order is that it cannot dictate orders for child custody or child support. It also cannot exclude or ”ban” a spouse from their own residence.
Find the Legal Support and Protection You Need
If you, your children, or any other member of your household feels threatened by a partner, we are here to help you find the protection and peace-of-mind you so rightly deserve. We are well-versed in both family and divorce law and can help you file for the temporary protective order you need.
Get in touch with us at Scott M. Brown & Associates for the legal team that puts your protection first!