I have a theory about protective orders. I think most Courts that consider them, look at it with a “better safe than sorry” mentality. Since a protective order generally only prevents a family member from doing things he shouldn’t be doing in the first place, plus requires a fighting couple from coming into contact with each other, it is safer to grant a protective order than to actually consider the viability of the allegation in the first place.

Let me be more specific. There are essentially three ways to involve a court when one spouse wants to restrain the other from harassing or violent behavior. The first is through temporary orders in a divorce filing. These orders last throughout the pendency of the divorce. The second is through a Magistrate’s Emergency Protective Order. This order is attached to a criminal case involving an assault, irrespective of whether a divorce has been filed. This order lasts 60-90 days. The final method is a Protective Order under Chapter 81 of the Texas Family Code. This is a more far-reaching order and applies for two years.

A Court can grant a two-year protective order if, after a hearing, it finds that “family violence” has occurred and is “likely to occur in the future”. Once the order is granted, the Court can enforce the order through contempt. As well, a violation of the protective order can be prosecuted through the criminal statute.

A party subject to a protective order is therefore in¬†real¬†danger. Once a protective order is in place, all it takes is one 911-phone call to put that party in jail. Often times the bail amount for the criminal offense of Violation of a Protective Order is exorbitant and is reduced only after the Court imposes further conditions on the party or issues a Magistrate’s Emergency Protective Order. I’ve had clients spend all weekend in jail before being able to arrange release!

Which brings me back to my point. Although a Protective Order prevents a party from committing family violence and keeps him from coming into contact with the complaining party, this is not the only effect it has on the party being restrained. In the context of a divorce, it limits the restrained party’s ability to enter the family residence, to visit with his kids, or to possess a shotgun. As well, in some counties like Harris County, a different Judge may make the Protective Order findings rather than the Judge who handles the divorce action. This means that the Judge who is making the determination of how to split assets becomes aware later that another Judge has already found that family violence has occurred without ever knowing the weakness of the underlying facts. This puts the accused party at a serious disadvantage when it comes time for a property split. Another serious problem is that the Protective Order is a public record, allowing interested employers to find out there has been a finding of family violence.

I think some Judges discount the impact a Protective Order has on the accused party. My guess is some Judges would rather impose it, despite obvious inconsistencies in the complaining witness’ story, than to run the risk of not granting the order and being wrong. It’s hard to “judge” them on acts of self-preservation. What could be more terrifying for an elected Judge than to deny a protective order only to find out later that the accused party has injured the complaining party? The press would love to get hold of that!

One solution to this problem may be an agreement with the opposing side to implement a mutual restraining order, with language attached to the order stating that both parties agree that the order cannot be used in future proceedings. Another solution may be for the Judge in the Protective Order Court to merely extend the temporary order in situations where the requesting party or the accused party is planning to file a divorce.