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Family Violence Protective Order can be complex

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protective order documentEvidence Needed for a Family Violence Protective Order

Seeking a protective order after an instance of family violence can be complex. A protective order can be used to help a victim of family violence feel safer by restricting his or her interactions with the alleged abuser. However, there are several elements that must be proven to ensure a court would approve a protective order.

When a person makes an accusation of family violence, he or she may seek a protective order. The protective order is a civil court order designed to limit the interactions and possibly prevent communication between the alleged victim and the alleged offender. The standard of proof for a Texas court to approve such an order is much lower than any related criminal charges.

Civil protective orders offer both civil and criminal protections to victims and their families with the purpose of preventing and ending the domestic violence. The order must first be approved by the court before it can be enacted. A court will approve the order at a protective order hearing, according to Texas Family Code Annotated § 85.001, if the petitioner can demonstrate:

• Family violence had occurred in the past
• There is a strong likeliness family violence will occur in the future

Family violence is defined under § 71.004 of the Texas Family Code as any act by one member of a family or household intended to physically harm another member, a serious threat of physical harm or the abuse of a child.

In these cases, family could include blood relatives or relatives by marriage, former spouses or parents of the same child, whether or not they are married or live together. Foster parents, foster children, any member or former member of a household and two people in a dating relationship also could be included.

The most important piece of evidence in proving family violence is the testimony of the victim. Protective order hearings often are a battle between the parties because there are rarely other witnesses. Each side will be able to plead a case, both trying to establish credibility.

Other evidence of abuse could include witness testimony, including from a child or other household member. This witness may not have seen the actual abuse, but could have witness the after effects, such as bruising, fearful behavior or broken bones.

In addition, police reports, testimony of police officers who responded to the calls, medical records, photos of injuries, torn clothing and photos of damaged property could be used to prove abuse or the threats of abuse.

The burden of proof required from petitioners is lessened when seeking a protective order. Proving violence occurred or could occur requires a lower standard than "beyond reasonable doubt." meaning it is possible for the judge to award the order based on evidence that would not be sufficient to convict a person of a crime.

This evidence requirement applies if it is a person's first protective order against the alleged abuser and if a previous order against the abuser expired without violation. However, less evidence is required if a person previously violated an order.

If a protective order is granted it could prohibit the alleged offender from committing further acts of family violence and prohibit the accused from harassing or threatening the victim, either directly or indirectly by communicating the threat through another person. Once that is violated, the applicant need only prove the former order was violated while still in effect.

 

Source: HG Legal resources

 

 

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Guest Saturday, 20 January 2018