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Can a Protective Order Force My Abuser to Leave?

Yes! In Texas, a victim of domestic abuse can request a “kick-out order” in an application for an ex-parte protective order. An ex-parte protective order is a temporary protective order issued by the Court.

An application seeking an ex parte protective order must:

  • Contain a detailed description of the facts and circumstances that you claim constitute family violence along with a description of the need for the immediate order;
  • Be signed by the applicant who is stating under oath that the facts and circumstances contained in the application are true; and
  • Establish for the Court a clear and present danger of future family violence. TFC §83.001

To request a kick-out order, the court must find that:

  • The applicant either continues to reside at the residence or has resided there within the 30 days before the application was filed;
  • The family violence must be against a member of the household and must have occurred within the 30 days preceding the application; and
  • There must be a clear and present danger of future family violence against a member of the household. TFC §83.006 4.

The court may recess the ex-parte protective order hearing to contact the respondent to allow the respondent to appear. TFC §83.007

What Is Family Violence in Legal Terms?

“Family violence” is defined at TFC § 71.004 as:

  • An act by a member of a family or household against another member of the same family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; or
  • Dating violence, as that term is defined by TFC § 71.0021 (see below); or
  • Abuse, as that term is defined by TFC §§ 261.001 (C)(E) and (G) by a member of a family or household toward a child of the same family or household.

The definition of abuse contained in the Family Code is a very broad definition, which includes mental or emotional injury, but also includes allowing the child to be in a situation where the abuse occurs and failing to make a reasonable effort to prevent the abuse or the child witnessing the abuse. This definition includes conduct committed by the actor that is merely harmful to a child’s mental, emotional, or physical welfare as well as use by the actor of a controlled substance in a manner or to the extent that the use results in physical, mental, or emotional injury to a child.

What Is Dating Violence?

“Dating violence” is also defined at TFC § 71.0021 as:

  • An act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
  • Dating relationship means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of the relationship is determined by considering:
    • The length of the relationship;
    • the nature of the relationship; and
    • the frequency and type of interaction between the parties involved in the relationship.
  • A casual relationship or ordinary fraternization in a business or social context does not constitute a “dating relationship”.

If you or someone you know is a victim of family violence, please call the Oxner Legha Law Firm at 346-327-9500 and let us help fight for you.

 

 

 

Arpita Legha

About Arpita Legha

Attorney Legha is licensed in the State of Texas and is a member of the State Bar’s Family Law Section. More about Arpita Legha.

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