Protect Yourself From a Protective Order
December 15, 2011 By The Gilmet Law Firm
Understanding the Importance of Defending Yourself against a Protective Orders
Under the Texas Family Code there are two types of protective orders that may be requested for protection against family-violence. A temporary ex parte order (often referred to as a restraining order) may be issued if there is a finding of clear and present danger of family violence. A protective order may be issued if there is a finding that family violence occurred and is likely to occur in the future. It is indisputable that victims of domestic violence warrant the utmost protection under the law. However, the low evidentiary standard applied to the issuance of restraining and protective orders allows individual to utilize these orders as leverage in other court proceedings.
For instance, a victim of domestic violence may receive immediate relief by having an ex parte temporary order issued. An ex parte protective order is granted without any notice to the accused. This means that the accused does not have the opportunity to defend themselves against the allegations. Despite the accused not having an opportunity to a defense, an ex parte protective order can force the accused to move from the residence, can prohibit or limit contact between the accused and the accuser and lasts up to twenty days. The consequences of an ex parte order are harsh considering the accused is not even entitled to notice of the hearing.
While the accused does not have the right to notice during an ex parte protective order hearing, the accused does have a right to notice regarding a protective order hearing. A protective order hearing is requested when the petitioner wants to extend the ex parte protective order or simply wants to pursue a protective order. A protective order is usually issued for a two-year time period and may have the following consequences: (1) prohibit a party from removing a child from the home; (2) grant exclusive possession of a residence to a party; (3) limit visitation with the child and/or children; and (4) prohibits a party from possessing a firearm and/or ammunition. Moreover a protective order grants the alleged victim a rebuttable presumption that they should have legal custody of the children.
The low evidentiary legal standard often applied during a restraining order hearing leads to bizarre findings. For instance, in 2005 a woman claimed that David Letterman wanted to marry her, forced her to file bankruptcy and communicated with her in “code” through his show was able to have a temporary order issued. In Mr. Letterman’s case the allegations seemed absurd and unlikely—yet a temporary restraining order was issued. Unfortunately, temporary orders and protective orders can be issued under similar false and exaggerated circumstances as the ones presented in Mr. Letterman’s case despite the hefty consequences. A person who violates an order may be punished for contempt of court by a fine of as much as $500.00 or by confinement in jail for up to six month or both.
Due to the harsh consequences a protective order may have on your life it is important to hire an attorney to defend you during these proceedings. Too often, I have witnessed unrepresented individuals sign a protective order agreement solely to avoid confrontation. Many of these individuals had a valid defense and/or their accuser could not meet the legal standard to have a protective order issued but because they lacked the legal advice they succumbed to having a protective order issued. Unfortunately, a lot of these individuals also had pending child custody and/or divorce cases and were probably unaware of the effects a protective order will have on those proceedings.
An attorney can help protect your rights by requiring the alleged victim to prove their case. That is by requiring that the alleged victim makes a showing that family violence occurred AND it is likely to occur in the future. An attorney can help you present your case in the best possible manner and can potentially save you future emotional and financial stress.
The consequences a protective order will have on your life and any future proceeding are too important to ignore. It is important to hire an attorney that is experienced in defending family protective orders and is familiar with the procedural rules. If you are served with a protective order hearing contact an attorney immediately to allot your attorney sufficient time to adequately prepare for your case and hopefully avoid any future emotional and financial stress.
ABOUT THE AUTHOR: Yexenia Gilmet
Yexenia Gilmet practices family law in Houston, Texas. Ms. Gilmet has represented individuals in obtaining and defending protective orders. If you are looking for an attorney who will strongly advocate on your behalf contact Yexenia Gilmet.
Copyright The Gilmet Law Firm
More information about The Gilmet Law Firm
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
For instance, a victim of domestic violence may receive immediate relief by having an ex parte temporary order issued. An ex parte protective order is granted without any notice to the accused. This means that the accused does not have the opportunity to defend themselves against the allegations. Despite the accused not having an opportunity to a defense, an ex parte protective order can force the accused to move from the residence, can prohibit or limit contact between the accused and the accuser and lasts up to twenty days. The consequences of an ex parte order are harsh considering the accused is not even entitled to notice of the hearing.
While the accused does not have the right to notice during an ex parte protective order hearing, the accused does have a right to notice regarding a protective order hearing. A protective order hearing is requested when the petitioner wants to extend the ex parte protective order or simply wants to pursue a protective order. A protective order is usually issued for a two-year time period and may have the following consequences: (1) prohibit a party from removing a child from the home; (2) grant exclusive possession of a residence to a party; (3) limit visitation with the child and/or children; and (4) prohibits a party from possessing a firearm and/or ammunition. Moreover a protective order grants the alleged victim a rebuttable presumption that they should have legal custody of the children.
The low evidentiary legal standard often applied during a restraining order hearing leads to bizarre findings. For instance, in 2005 a woman claimed that David Letterman wanted to marry her, forced her to file bankruptcy and communicated with her in “code” through his show was able to have a temporary order issued. In Mr. Letterman’s case the allegations seemed absurd and unlikely—yet a temporary restraining order was issued. Unfortunately, temporary orders and protective orders can be issued under similar false and exaggerated circumstances as the ones presented in Mr. Letterman’s case despite the hefty consequences. A person who violates an order may be punished for contempt of court by a fine of as much as $500.00 or by confinement in jail for up to six month or both.
Due to the harsh consequences a protective order may have on your life it is important to hire an attorney to defend you during these proceedings. Too often, I have witnessed unrepresented individuals sign a protective order agreement solely to avoid confrontation. Many of these individuals had a valid defense and/or their accuser could not meet the legal standard to have a protective order issued but because they lacked the legal advice they succumbed to having a protective order issued. Unfortunately, a lot of these individuals also had pending child custody and/or divorce cases and were probably unaware of the effects a protective order will have on those proceedings.
An attorney can help protect your rights by requiring the alleged victim to prove their case. That is by requiring that the alleged victim makes a showing that family violence occurred AND it is likely to occur in the future. An attorney can help you present your case in the best possible manner and can potentially save you future emotional and financial stress.
The consequences a protective order will have on your life and any future proceeding are too important to ignore. It is important to hire an attorney that is experienced in defending family protective orders and is familiar with the procedural rules. If you are served with a protective order hearing contact an attorney immediately to allot your attorney sufficient time to adequately prepare for your case and hopefully avoid any future emotional and financial stress.
ABOUT THE AUTHOR: Yexenia Gilmet
Yexenia Gilmet practices family law in Houston, Texas. Ms. Gilmet has represented individuals in obtaining and defending protective orders. If you are looking for an attorney who will strongly advocate on your behalf contact Yexenia Gilmet.
Copyright The Gilmet Law Firm
More information about The Gilmet Law Firm
View all articles published by The Gilmet Law Firm
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
