Too often, victims are afflicted by a spouse or partner’s violence. Some people struggle to control their emotions and may lash out when angered. Others use physical and psychological abuse as a means of asserting control. Whatever the reason, violent people present a danger that must be taken seriously.

The law establishes five types or orders of protection against violent conduct: 1) domestic violence; 2) repeat violence; 3) dating violence; 4) sexual violence, and 5) stalking.  An order of protection is more commonly known as a “restraining order.”  A restraining order is a type of injunction.

In a divorce case, an order of protection can be pivotal when the court decides on child custody and how to split marital property, provided the court believes the allegations in the order. For example, if a court finds that one partner engaged in domestic violence, it is more likely to award the kids to the other spouse and may take punitive action through an adverse property distribution.

How to Get a Restraining Order

Anyone can file for a restraining order by visiting the clerk of the court’s office. They come at no cost to the petitioner. The type of order issued depends on the petitioner’s relationship with the respondent.

Filing for a restraining order results in an immediate issuance of a temporary protection order, regardless of the evidence or lack thereof. This speedy process is meant to prevent the respondent from committing acts of violence against the petitioner. 

The judge in the case must assume the allegations are true for the purposes of granting a temporary order. However, a hearing is scheduled where the respondent can argue against the allegations and issuance of a permanent order.

To win a permanent order, the petitioner must provide clear and convincing evidence. For example, the victim may have sustained visible injuries that demonstrate an attack. Either side may call witnesses. If the judge approves the order, it is usually permanent but can have an expiration date.

Domestic Violence Restraining Orders

Domestic violence restraining orders apply to family members. For example, a wife could file one against her husband if he hit her or threatened violence. The petitioner must allege a specific act or threat, including that he or she is a victim of domestic violence, which is specifically defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment.” If a threat of violence is cited, the petitioner must demonstrate why he believes imminent danger exists.

Repeat Violence Restraining Order

The courts issue this type of restraining order to dangerous non-family members, such as co-workers, roommates, and neighbors. The law requires the respondent to have committed at least two violent acts or stalking against the petitioner within the previous six months. 

Dating Violence Restraining Order
Texas law defines dating violence as violence between people in a continuing, significant relationship or an intimate one. For a court to issue this type of order, dating violence must have happened within the previous six months. One incident of violence or a reasonable belief it is imminent is sufficient for the order to be issued.

Petition for Protection Against Sexual Violence

Sexual violence includes lewd or lascivious acts committed in the presence of a person younger than 16 years of age. It also includes luring or enticing a child, sexual performance, or other forcible felonies where a sexual act is committed or attempted. One act is sufficient for this type of order. 

Stalking Restraining Order

Texas prohibits stalking, and courts will issue an order of protection against stalkers, including cyberstalkers. 

Orders of protection from violence serve an important purpose in defending victims. Their issue prevents many crimes, such as assault and battery. However, it’s important to understand that a restraining order differs from a criminal conviction.

To win a criminal conviction, the state must prove the allegations beyond a reasonable doubt. However, judges issue temporary restraining orders without demanding any evidence and make them permanent based on clear and convincing evidence, a much looser standard of proof.

As a result, when introduced in a divorce case, the court may not presume the allegations are true as they might with a criminal conviction. Rather, the court must weigh the totality of the evidence presented before deciding if a fault divorce based on cruelty is warranted.

Call Us Today to Speak to a Dallas Family Law Attorney

If you need to seek a restraining order or believe one has been unfairly filed against you, you should speak to an experienced lawyer as soon as you can. Attorney Chris Jackman is a skilled family law attorney who knows how to protect his client’s rights and resolve difficult cases as favorably as possible. To schedule a case evaluation with Mr. Jackman, call our office today at (972) 914-3986 or contact us online.

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