DOMESTIC VIOLENCE AWARENESS
The statistics on the occurrence of domestic violence in the United States and in Texas are staggering. The Texas Council on Family Violence reports nearly 200,000 incidents of family violence in 2009 alone, and the impact of this violence between two partners undoubtedly trickles down to the entire family. Victims of family violence are frequently thrown into the court system here in Texas, either as witnesses in criminal cases or as parties in a divorce or custody case. We hope to provide information about some of the issues that arise in divorce or custody cases involving family violence. Also, there are resources that follow the end of this newsletter.
Family Violence Protective Orders
The law in Texas allows a victim of family violence to obtain a Protective Order if she can prove that family violence has occurred and is likely to occur in the future. Protective Orders almost always contain a “stay-away” provision that will require the perpetrator of the violence to remain a certain distance away from the victim. Some Protective Orders contain provisions that prohibit any contact at all with the victim, as well as protections for children or other family members who live with the victim. Violation of a Protective Order is a criminal offense, and it can result in an immediate arrest by law enforcement.
Obtaining a Protective Order requires a hearing in court, and a judge will ultimately decide whether a Protective Oder is necessary. A Protective Order can be obtained by a private attorney or by a county agency. For example, the Travis County Attorney’s Office has a division of lawyers dedicated specifically to obtaining Protective Orders.
Protective Orders are available to married couples, family members, persons in dating relationships, including same-sex couples, roommates, and victims of sexual assault.
Family Violence and Custody
Texas law has a strong presumption, at least on the books, that if a person commits family violence, they should not have joint custody of their children. There are provisions in the law that allow a court to put orders in place regarding restrictions on visitation with children, battering intervention classes, and other orders to minimize the risk of future violence. Although courts are provided with a lot of tools to address family violence, in practice it can be very challenging to obtain custody orders that severely restrict a parent’s rights.
The initial hurdle of proving that family violence has actually occurred is difficult in many cases. Incidents of domestic violence often go unreported to law enforcement, and many victims do not tell their family or friends what is happening in their relationship. The Texas District & County Attorneys Association reports statistics in their publication Family Violence Investigation & Prosecution that indicate a very small percentage of people experiencing violence actually call the police. Some victims are able to take pictures of their injuries after-the-fact, but without third party witnesses to the violence, the evidence in court is often just the testimony of the two parties involved. The court is then left to decide who is telling the truth.
Many victims of violence have personal challenges to address due to being in an abusive relationship. They are often isolated from family and friends, thus taking away a support network that can be essential in ending their abusive relationship. Many abusers also control the finances and the ability of the victim to work and provide for herself and her children. Lack of access to money and support can make launching a custody battle nearly impossible. The emotional toll of the relationship on the victim can often impair their ability to maintain employment and housing, which can be barriers to winning a custody dispute.
The good news is that many lawyers, county offices, and area non-profits dedicate their resources and time to family violence custody cases.
Family Violence and Property Division
Texas permits a spouse to a marriage to assert “cruelty” as a ground for divorce, which may result in that spouse receiving a disproportionate share of the property. Domestic violence and extreme cases of emotional abuse may result in a court finding that one spouse is guilty of cruel treatment against the other spouse. Although Texas does not have a formula to determine how much more property or support should be awarded due to cruel treatment, it is another tool the Courts are provided to make a just and right division of property in a divorce.
Resources for Family Violence Victims
Travis County Attorney’s Office: (512) 854-9415