Domestic Violence Protective Order & Divorce
August 12th, 2019 by Tad Nelson in Domestic Violence
It is not unusual for a spouse to raise allegations of domestic violence in the context of a divorce case. In some situations, a Houston court will issue a protective order against one spouse if there is evidence of abuse against either the other spouse or any children living in the home. It is therefore important to understand how the law works in this area.
Court: Mother Allowed to Testify Regarding Acts of Abuse Not Previously Alleged in Application
Consider this recent decision from the Texas First District Court of Appeals here in Houston. In Puente v. Puente, a mother filed for a domestic violence protective order on behalf of herself and her children. In her application to the trial court, the mother alleged the father had committed acts of violence against the children.
At a formal hearing, both the mother and father testified. The mother presented evidence of violence the father committed against both her and the children. The judge ultimately issued a two-year protective order, which among other things directed the father to stay at least 200 feet away from the mother and the children at all times. Separately, the mother filed for divorce from the father, and the court in that case issued a restraining order that prohibited the father from “taking possession of” the children.
The father appealed the two-year domestic violence protective order. The mother argued the father had no right to such an appeal, citing a Texas statute that prohibits a “protective order entered in a suit for divorce” until the trial court enters a final judgment. The First District said this rule did not apply here, as the mother filed a separate application for the protective order before she filed for divorce.
That said, appeals court went on to reject the substance of the father’s appeal, which centered on the trial judge’s decision to consider evidence of alleged abuse against the mother. The father maintained that since the mother’s application only referred to abuse against the children, he never received “fair notice” of potential allegations of abuse against the mother.
But as the First District explained, the law does not require a person applying for a domestic violence protective order to “specify particular acts of violence in her application and limit her proof to these acts.” And even if it did, the father “tried the issue of whether he directed family violence toward [the mother] by consent.”
With respect to this second point, the appeals court noted the father “did not object” when the mother testified before the trial court as to the abuse directed against her. Rather, he took the stand and testified in his own defense. This effectively amounted to the father consenting to the trial of this issue.
Speak with a Galveston or League City Domestic Violence Lawyer Today
If you are accused of domestic violence by an estranged spouse, you need to take the matter seriously. A qualified Houston domestic violence defense attorney can advise you of your rights and what steps to take in response to an application for a protective order. Contact the Law Offices of Tad Nelson & Associates today if you need to speak with an attorney right away. Call (281) 280-0100 .