Family Violence
We Represent Survivors
At Hennan Culp, we believe that no client is as deserving of zealous and specialized advocacy as survivors of family violence. As a result, we do not charge consultation fees for those who have experienced family violence.
The terms “domestic violence” and “family violence” are often used interchangeably. However, the Texas Family Code utilizes the term “Family Violence” when addressing physical abuse, sexual assault, or threats of physical abuse or sexual assault, occurring between members of the same household or who are in a dating relationship.
Hennan Culp recognizes that survivors of family violence need not only assertive legal representation, but often social, psychological, and financial support. Our advocacy for family violence survivors involves a holistic approach that considers the various issues and challenges faced by our clients as a result of the abuse they have endured, whether that be a one-time incident or a prolonged history of violence.
If you have been victimized by family violence and are seeking legal advice or representation, please call our firm at 512.710.9763 and set up a free consultation.
How do I get a protective order?
Getting a protective order is not easy, and judges often are tasked with the difficult role of weighing the concerns of possible family violence against the possibility that someone might be merely alleging violence to gain an advantage in divorce or custody litigation. The victim bears the burden of proof and must establish through evidence and testimony that:
(a) an act of family violence has occurred, and
(b) that it is likely to occur in the future.
Texas Family Code §85.001(b)
However, often a protective order needs to be issued fast, before notice to the opposing side and before a full hearing can be scheduled and held. Ex-parte protective orders are protective orders obtained without the notice or presence of the abuser or their attorney, and are essentially based on the allegations of the victim (which must be taken as true by the judge). They are often granted quickly (within a matter of days of the incident, if not even less), but must be followed within 20 days with a full hearing, notice to all parties, and the opportunity to fully present evidence and testimony. The judge will then either grant or deny the protective order, depending on whether or not she or he make the above finds regarding family violence occurring, and being likely to occur in the future.
Once a full hearing is held and a protective order is granted by the judge, that protective order often lasts for two years. Protective orders are generally not renewed absent the occurrence of a new act family violence occurring within that two-year protected period. Should a new act of family violence occur, the court can extend the protective order for another year.
A protective order can physically remove your abuser from your residence, and order them to refrain from coming near your home, place of employment and your child’s school. It also can prevent abusive communications between the abuser and victim. Compared to other types of orders designed to prevent harm or protect parties and their interests, protective orders have more teeth—law enforcement will enforce a protective order, and will arrest a perpetrator on the spot if they are found violating the order. For a clearer picture of what a protective order often accomplishes, view the sample order attached here.
How does family violence affect my divorce or custody case?
The most immediate and obvious consequence of family violence is most often a resulting protective order. However, there are other important consequences that follow in divorce and custody litigation. Two of the most frequent and important consequences pertain to fault grounds in a divorce case, and certain presumptions that the judge will make in any case involving custody issues regarding joint vs sole managing conservatorship.
Divorces in Texas can be granted by judges where there is “no fault” by either party in the ending of the marriage. Essentially, nobody has to be blamed for the marriage breaking up for a judge to render you divorced. However, a party seeking divorce can allege certain fault grounds against the other party, which can result in a disproportionate share of the property of the marriage, the community estate we say, being awarded to the non-faulting spouse. Cruelty, or Cruel Treatment, which often includes family violence, is one of those fault grounds. (Texas Family Code §6.002).
Therefore, while it is, on principle, obviously an inadequate means of fully redressing the victimization that comes with family violence, pleading family violence as a fault ground against the opposing spouse is one way to restore both monetary resources and some sense of vindication to survivors of family violence.
In any custody case, whether as part of a divorce or pure custody suit between two parents, a finding of family violence can greatly impact the court’s orders regarding conservatorship and possession and access of your child or children. Conservatorship, in basic, pertains to the rights and duties each parent has in relation to their children, and is often rightfully associated with “decisionmaking.” Possession and access addresses “who gets to see the kids, when, and under what circumstances?”
Regarding conservatorship, a finding of family violence has the following notable effects in your custody case:
Per Texas Family Code 153.004(b), a judge who finds that a history or pattern of physical or sexual abuse has occurred cannot appoint both parents as joint managing conservators in a custody case. Further, such a finding also creates a presumption that the abuser parent should not be the sole managing conservator nor the parent who determines the child’s primary residence (the “primary” parent, as it is often described). The net effect of these two prongs of 153.004(b) is that if the judge finds a history of pattern of abuse, it makes a compelling legal argument for appointing the victimized parent as the sole managing conservator.
Importantly, “history or pattern” does not mean that it must have occurred more than once. The Texas Supreme Court has found that one instance of abuse can establish a “history” for the purpose of this statute. See Baker v. Baker, 469 S.W.3d 269 (Tex. App.—Houston, 14th Dist. 2015).
Regarding possession and access, a finding of a history or pattern of family violence within the two years preceding the lawsuit, or during the lawsuit, often results in no contact between the abuser parent and the child, or if contact is ordered, it is frequently very limited and/or only under supervision of a third party or relative. While the court may order no access for the abuser parent, a judge often renders some possession if such contact would not endanger the child’s physical health or emotional welfare, and will order a possession schedule for the abuser parent that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence. In providing such protection, such custom possession schedules can include:
- Supervision for the visit by a person the court deems competent to guarantee the child’s well-being, who could be a relative, family friend, or licensed supervisor or supervision facility;
- Supervision of the possession exchanges of the child;
- Injunctions preventing the abusing parent from drinking alcohol;
- Ordered therapy and education such as a battering intervention program for the abuser parent to undergo.
(Texas Family Code 153.004(d) and (d-1)).
Conclusion
In short, the law has many provisions designed to protect and assist parties and children afflicted by family violence. The most obvious and often urgently addressed of these regard getting protections in place at the outset of an incident of family violence, but also address important issues of decision-making authority and possession with parties’ children.
At Hennan Culp, we believe that no client is as deserving of zealous and specialized advocacy as survivors of family violence.