|
In Texas a court procedurally may issue three basic types of emergency relief. The relief granted is dependent on the relief requested, the circumstances actually involved in the emergency, and the procedural device used to obtain the relief. The three basic types of relief are: (1) temporary restraining order; (2) temporary injunction; and, (3) protective order. [The court also has other inherent authority to order the clerk to issue whatever other writs and processes may be needed. These other writs may include a writ of attachment (civil arrest warrant) or a writ of habeas corpus (release and delivery of child or other person) to name but two. But generally speaking, the vast majority of emergency orders issued by a court will fall under one of these three categories.] Temporary Restraining Order: This is the most common procedural device employed in a family law case. It is often obtained routinely upon the filing of a divorce. The law has a laundry list of things which the court may ordinarily order as a matter of course without notice to the other side upon the filing of a divorce. Paraphrased these include restraints on a party's "person" and "property." This order can be obtained without providing the other party notice of your request, and without the necessity of filing a bond. However, some local jurisdictions such as Dallas County have a local rule requiring the attorney for the party seeking the order to give the other side notice of the filing if the party is represented by legal counsel. As discussed below, this order is a very temporary order and is subject to being set aside or made mutually binding against the person who obtained it. The normal restraints on a party's "person" include restraining: (1) any offensive, profane of threatening contact with the other spouse or children; (2) threatening or doing any physical harm to the other spouse or children; or, (3) placing unreasonable, offensive or repetitious telephone calls to the other spouse or children, to name but three representative categories. The normal restraints on a person's "property" include restraining: (1) any destruction, transfer, sale, assignment, diminution in value, concealing, hiding, or encumbering of any property (including the person's separate property); (2) falsifying any document or record; and, (3) spending any funds but for normal business expenses, normal living expenses, and paying reasonable and necessary attorneys fees, to name but three. The court may also enter temporary restraining orders regarding the children which restrain anyone from: (1) removing the child from an identifiable geographic area such as the State of Texas or even a particular county or city; (2) removing the child from school or day-care; or, (3) hiding the child, to name but three. Upon a sworn statement (affidavit) showing an immediate threat of significant harm to the child the court may also enter an order: (1) placing the child in protective care of the court, another adult or the applicant parent; and, (2) limiting the other parent's access to the child, to name but two. Once one party obtains a temporary restraining order in a matter, the other party may obtain a mutual temporary restraining order against the original party either by agreement of the parties or by an order of the court. The party who has been restrained may also on two days notice seek to have the temporary restraining order lifted in part or in whole. The restraints remain in force for up to fourteen days at which time a hearing is held on the pending motion or application for a temporary relief. This time limit may be extended once by the written order of the court. However, if a hearing is not held within such time, the temporary restraining order ceases to be binding on the parties. If the hearing is held, the court then may consider the issues brought before it and enter temporary injunctions. A temporary restraining order normally is not enforced by law enforcement since it is normally considered a civil dispute. The best manner of enforcing the order is by seeking a contempt charge against the offending party which is enforced by the judge who issued the order. The punishment may range from fine to incarceration. Temporary Injunction: A temporary injunction is also known in family court as "temporary orders." Such are normally the result of the hearing held at the end of the 14 day period of the temporary restraining order described above. However, such orders can be obtained after an action has been filed even if a temporary restraining order was not obtained. It is normally necessary to give the other party at least three days notice of the setting, but this may be shortened or lengthened by the court as is appropriate in the court's discretion. Normally in a family law case a bond is not necessary and does not have to be filed to be effective. Temporary orders can and often do include orders requiring: (1) the filing of a sworn inventory and appraisement of all of the parties property by both parties; (2) the payment of temporary child support; (3) the payment of interim attorneys fees; (4) the payment of temporary spousal support [also known as maintenance and commonly referred to as alimony]; (4) the appointment of conservatorship powers and obligations by and between the parties; (5) the award of the use of personal property including the residence and vehicles; (6) the operation of a family business; (7) the division of the obligations to pay interim and existing bills and other indebtedness; (8) visitation with and possession schedules of the children; and, (9) the production of documents, papers, records and other tangible things, to name but nine things the court may order. A temporary injunction -- like a temporary restraining order -- normally is not strictly enforced by law enforcement since it is normally considered a civil dispute. The best manner of enforcing the order is by seeking a contempt charge against the offending party which is enforced by the judge who issued the order. The punishment may range from fine to incarceration. Protective Order: A protective order is normally the true emergency order entered by a court. It provides for the immediate welfare and safety of the applicant from the threatened or actual family violence of another person. A protective order, unlike a temporary restraining order, may force the other spouse from the home without a hearing. The protective order is also generally considered a more serious order and is more apt to obtain a quick police response in the event it is disobeyed. In normal circumstances it is actually a felony to violate a protective order. The protective order is issued upon a court's review of the application accompanied by an affidavit alleging on personal knowledge actual acts of or threatened acts of physical violence by a family member against another. A person who seeks the removal exclusion of the other spouse from the family residence based on claims of family violence must personally appear as well. Caveat: Recent trends in federal legislation related to gun ownership make the entry of such orders based on any allegations of violence very complicated. Such an order can permanently block a person from obtaining a weapon, or even a license to own a weapon. It is clear the entry of a protective order has such a result, while their is some federal appellate authority temporary relief also limits a person's rights to gun ownership. It also has a devastating impact on a person's right to work in law enforcement. As such, courts are becoming more hesitant to enter carte blanche orders based on unsubstantiated allegations of violence. -- The Law Offices of Steven E. Rogers |