The COVID-19 Pandemic has caused more people to remain at home for months causing issues that become more prevalent when people are cooped up inside sometimes with no employment.    Our divorce practice has seen more cases involving domestic violence and the need for persons to seek professional help in the form of protective orders.  We received many calls from individuals who are being abused physically and emotionally due to financial burdens placed on families especially with children involved.  It is a serious situation that can have serious ramifications on the abuser.

In an application for a protective order, and at the close of a hearing on an application for a protective order, the court shall find whether: (1) family violence has occurred; and (2) family violence is likely to occur in the future.

If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court: (1) shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence; and (2) may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order. (c) A protective order that requires the first applicant to do or refrain from doing an act under Section 85.022 shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future. (d) If the court renders a protective order for a period of more than two years, the court must include in the order a finding described by Section 85.025(a-1).

To better understand how courts view the domestic violence issue,  they must determine whether family violence is likely to occur in the future often relies upon the “past is prologue” principle—that the occurrence of family violence in the past evidences the continued likelihood that family violence will occur. This principle originated in termination cases, where evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future. The courts have extended this principle to applications for protective orders.

The following cases and their ruling give us an insight into what and how courts view domestic violence and the necessary remedy.

In Burt v. Francis,  the factfinder concluded that an individual was reasonably placed in fear so as to support a finding of family violence and the issuance of a protective order, 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 the child while standing over them, slamming his fist, using foul language, and calling the mother an evil person, reasonably placed the mother and child in fear and thus constituted family violence.

In Coffman v. Melton,  the trial court could consider events that predated the divorce in the evidence to issue a protective order, including the husband’s spitting on, cursing at, and physically abusing his wife. The wife also testified that the husband violated the first order by “plastering vulgarities about her in the family home, and coming within 200 feet of her and the children at church.” The appellate court found that there was more than a “scintilla of evidence” supporting the trial court’s findings that family violence had occurred and was likely to occur again in the future.

In the case of Brownlee v. Daniel,  the use of predivorce decree evidence in a postdivorce hearing on an application for a protective order does not amount to a collateral attack on the decree. Such evidence may be admitted to corroborate evidence of postdecree family violence.

In Johnson v. Johnson, a single instance of family violence, in which a husband pointed a cocked shotgun at a wife and told her to “get the fuck out,” coupled with the wife’s testimony that the husband had a short temper and that there was a potential for him to continue acting in a violent manner, constituted sufficient evidence that family violence was likely to occur in the future.

In cases where separate protective orders are necessary, a court can render separate protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section 85.022 shall render two distinct and separate protective orders in two separate documents that reflect the appropriate conditions for each party.

A court can also render protective orders that apply to both parties and require both parties to do or refrain from doing acts under Section 85.022 shall render the protective orders in two separate documents. The court shall provide one of the documents to the applicant and the other document to the respondent.  However, a court may not render one protective order under Section 85.022 that applies to both parties.

Parties can also agree on terms and initiation of a protective order without going to trial on the petition or application for a protective order.   To facilitate settlement, the parties to a proceeding may agree in writing to the terms of a protective order as provided by Section 85.021. An agreement under this subsection is subject to the approval of the court. To facilitate settlement, a respondent may agree in writing to the terms of a protective order as provided by Section 85.022 of the Texas Family Code, subject to the approval of the court. The court may not approve an agreement that requires the applicant to do or refrain from doing an act under Section 85.022. The agreed order is enforceable civilly or criminally.  If the court approves an agreement between the parties, the court shall render an agreed protective order that is in the best interest of the applicant, the family or household, or a member of the family or household. However an agreed protective order is not enforceable as a contract. An agreed protective order will also expire on the date the court order expires.

In some cases, the respondent does not appear for the protective order hearing. Therefore a court may render a protective order that is binding on a respondent who does not attend a hearing if the respondent received service of the application and notice of the hearing. If the court reschedules the hearing under Chapter 84, a protective order may be rendered if the respondent does not attend the rescheduled hearing.

Certain information is also omitted from the protective order to protect the victim.  On request by a person protected by an order or member of the family or household of a person protected by an order, the court may exclude from a protective order the address and telephone number of: (1) a person protected by the order, in which case the order shall state the county in which the person resides; (2) the place of employment or business of a person protected by the order; or (3) the child-care facility or school a child protected by the order attends or in which the child resides. (b) On granting a request for confidentiality under this section, the court shall order the clerk to: (1) strike the information described by Subsection (a) from the public records of the court; and (2) maintain a confidential record of the information for use only by the court; or a law enforcement agency for purposes of entering the information required by Section 411.042(b)(6), Government Code, into the statewide law enforcement information system maintained by the Department of Public Safety.