As divorce attorneys,  we have had a lot of inquiries during this COVID-19 pandemic about family violence and requests for a protective order due to abuse by a spouse or other family member.

WHAT IS FAMILY VIOLENCE UNDER THE TEXAS FAMILY CODE?

Under the Texas Family Code, “Family violence” means (1) an 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 measures to protect oneself; (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or (3) dating violence, as that term is defined by Section 71.0021.

WHAT DO THE JUDGES AND COURTS SAY ABOUT FAMILY VIOLENCE?

 In the case of Martin v. Martin, although evidence was presented regarding self-defense, ex-husband pushed ex-wife’s face against a wall causing bruising around her eye, slapped her across the face, and shoved her on three separate meetings, thus justifying the trial court’s finding of a likelihood of family violence in the future.

In another case, the court found that a factfinder may conclude that an individual was reasonably placed in fear so as to support a finding of family violence, even in circumstances where no express threats were conveyed. Acts of the father, including threatening the child that he would never see him again, screaming and yelling at the mother and child while standing over them, slamming his fist, using foul language, and calling the mother an evil person, reasonably placed mother and child in fear and thus constituted family violence.

In Agbogwe v. State, on appeal, the state contended that the family violence finding was proper based on the doctrine of transferred intent, arguing that while appellant was directing an assault on his household member (his girlfriend), he attacked another woman when she intervened. His intent had been to commit family violence against his girlfriend, and in the process, he also assaulted the other woman because she attempted to protect the girlfriend. The court of appeals noted that the doctrine of transferred intent, as codified in Tex. Penal Code § 6.04, allows “a transfer of intent in circumstances where the difference between what was intended, contemplated, and risked and what occurred is either a different victim, or where there is a discrepancy between the degree of harm intended and that actually produced.” The situation in this case is not a situation in which there is a difference between appellant’s intended victim and his actual victim. He intended to assault his girlfriend, a member of his household, and he so assaulted her by hitting her, knocking her down, and kicking her. When the other woman attempted to intervene and protect the girlfriend, he intended to assault the other woman to prevent her interference, and he so assaulted her by hitting her with his fist. The transferred intent doctrine is thus inapplicable under these circumstances.

Other courts have found that given the remedial nature of Tex. Fam. Code tit. 4, courts should broadly construe its provisions to effectuate its humanitarian and preventive purposes. Blocking a car, then jumping on the car’s hood, followed by harassment via text messages are sufficient evidence of family violence because those acts threaten violence.

In Davis v. Sampson,  “Imminent” refers to a present threat, not a threat of future bodily injury or death. “Imminent” means “near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” Threatening telephone calls and text messages from a man in Atlanta to a woman in Houston placed the woman in imminent fear because the communications included that the man had left Atlanta and was on his way to Houston.

Under the Texas Family Code, family violence does not require actual physical harm; threats that reasonably place the victim in fear of imminent harm are sufficient. Further, no overt express threat of violence is required to place a reasonable person in fear. The fact finder may conclude that an individual perceived fear or was placed in fear in circumstances where no actual threats were conveyed. Fear may result from a menacing glance and hand gesture, even in the absence of verbal threats. The course of conduct between the perpetrator and the victim is important to understanding whether there is sufficient evidence of a threat for a protective order to issue.

A victim need not feel pain for family violence to occur because the definition of family violence includes assault, which Tex. Penal Code § 22.01(a)(3) defines as “intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.”

However, In re Wean, stands for a mother’s “suspicions or conjectures” of sexual abuse are insufficient to prove family violence. Also, spanking a child, in and of itself, does not constitute family violence.

In another case, a husband’s verbal threats to his wife and daughter and raising his fist at his daughter constituted family violence, even without striking them, because these acts placed the wife and daughter in fear of imminent physical harm, bodily injury, or assault.

Dempsey v. Dempsey, stands for a man who pushed his wife after she intervened in an altercation between the man and his stepson committed family violence; that the wife voluntarily placed herself in a dangerous situation and the perceived threat was not directed against her are not defenses to family violence.

In Gonzalez v. Rangel, No. 13-05-641-CV, 2006 WL 2371464 (Tex. App.—Corpus Christi Aug. 17, 2006, no pet.) (mem. op.). Threatening to ruin a man’s career, telling him that she had shot her ex-husband, making multiple telephone calls to the man and telling him over the telephone while he was in Iraq that if he did not come home he would die were acts that were legally insufficient to constitute threats of family violence because no imminent threat of family violence existed.

Whatever the situation may be, if you find yourself in a situation where you believe your life or your children’s lives are in jeopardy because of the acts or threats of a family member,  it is always recommended that the police be called.  Never take a chance that the person may act in their threats.  Once the situation cools down, always speak with an experience divorce attorney to discuss options for you and your family.