ARE YOU A VICTIM OF DOMESTIC VIOLENCE?

As an attorney with the Barbosa Law Firm, P. C. and a Family Law attorney in Dallas County, Texas, I am often confronted with questions, from clients who are going through a divorce or separation, regarding physical or emotional abuse from their spouse or domestic partner.   Many times, people do not know or understand what “family violence” entail or whether or not they have been a victim of family violence by another member of their household.   Once family violence has been established as having occurred, the next phase is to determine whether or not a person can secure a “protective order” either ex parte or after a hearing in court.  The following is a basic outline of what Texas law considers a “household” and “family violence”.

The Texas Family Code defines domestic violence and the recourse that individuals have through Texas courts.   An attorney should be consulted if you have been a victim of domestic violence or know of someone that has been a victim of domestic violence.  Individuals must also contact their Police Departments once a conflict involving domestic violence occurs.

In Texas, family violence is defined in the Family Code under chapter 71. Family violence means 1) any act by a member of a family or household against another member of the family or household that is “intended” to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does “Not” include “defensive measure to protect one-self.

Texas case law has shown that cases, where the only fact is that a child is “spanked”, on its own, does not evidence family violence. A parent generally has discretion to use some degree of physical punishment in disciplining a child.  Therefore, for physical punishment to rise to the level of family violence there must be some evidence, such as severity of injury, type of physical instrument used, or mental or emotional state of the actor that would transcend a reasonable level of parental discretion regarding discipline.

Under section 71.005 of the Texas Family Code (TFC) a “household” is defined as a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. In section 71.006, the TFC defines a “member of a household” to include a person who previously lived in a household.

Texas Courts have also generally concluded that a complainant and a defendant constituted members of the same “household” for purposes of section 71.005 of the TFC even though they was no evidence that both individuals had a legal right to be there. Specifically if a victim alleges that the defendant was “living” with him/her in a dwelling at the time of the assault, the Courts generally rule that the parties were of the same household.

The Texas Family Code (TFC) in section 71.003 defines “Family” to include individuals related by consanguinity or affinity, individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

Courts in Texas have held that “Family” includes relationships established by marriage such as in-laws. Divorce terminates the family relationship established by marriage.  Therefore, by operation of law, if husband and ex-wife divorce, then for example ex-wife’s mother would not have a right to seek a protective order against the husband.

In any case where a member of a household has physically assaulted another household member or continues to place the member in fear of imminent injury, the police should always be contacted for the safety of the victim.

Contact the Barbosa Law Firm, P. C. for these issues or any other family law issues that you or your family may be experiencing.   We have assisted individuals and families since 1988 in getting them a fair and equitable solution to their family law problems.   Our main office number is 972-418-9678.