By: E.A. Putman
In The Handmaid’s Tale, an adaptation of the beloved 1986 dystopian novel by Canadian author Margaret Atwood , “Under his eye” is a greeting, but it is also a constant reminder to the oppressed that there is no safe way to escape. In today’s society, the phrase can be a nod to the cycle of domestic abuse and confirmation of the obstacles many survivors face when coming forward with their story.
Domestic violence does not choose victims based on race, age or background. It is a matter that has never been and will never be acceptable. Period. Unfortunately, it occurs more often than reported and happens on more than one occasion. It is this reason why it is difficult, if not impossible, for a victim to just “pick up the phone and ask the prosecutor to drop the charges.” The State not only represents “victims of violence,” but also “the people of my county [and] in doing so I am helping people throughout Texas.” People want to be protected. This protection is available through law enforcement and through legal prosecution. But, that covers the field of criminal law and ongoing or reported cases….
Regrettably, these resources are not aptly available for victims who have not come forward and are simultaneously dealing with family law litigation. When there’s no criminal case component, a family law case with allegations of domestic abuse can seem overwhelming and ostracizing for the victim.
The Texas Family Code defines Family Violence as an act by a member of a family or household against another member that is intended to result in physical harm, bodily injury, assault, or a threat that reasonably places the member in fear of imminent physical harm. It also covers dating violence which involves individuals who have or have had a dating relationship.
In 2013, there were 185,453 reported incidents of family violence in Texas. Over 1/3rd of those incidents were between current or former spouses and many others went unreported. The most common threads of family law and domestic violence may result in:
- Protective orders
- Supervised visitation for any children
- Unfavorable custody rulings for the accused
- Termination of parental rights
- Spousal maintenance (Divorce)
- Equitable property division (Divorce)
In Texas, temporary restraining orders are typically used in emergency situations, where one does not have time to set a hearing and give the other party notice. To get a temporary protective order in Texas, there has to be a clear and present danger of family violence, but the duration of the order will not exceed 20 days. Texas Family Code Sec. 83.001, 83.001. A temporary protective order may be the best route if someone wants to stop the the abuser from committing further acts of violence, harassment or threats, or even going near a school or daycare of a child protected under the order. A final protective order will prohibit any contact from the abused and/ or children with an expiration date of two years as the maximum length for the order.
Family violence can have a lasting effect on child custody or divorce proceedings. Supervised visitation may be ordered if the court finds that there are credible allegations of abuse–the allegations are not limited to the other parent or the child. Supervised visitation can either occur through an organization such as S.A.F.E. Program or it may be supervised by the other parent or another relative (limited circumstances).
The S.A.F.E. program enables a parent to visit with their child in an environment where they can be monitored. The program states that it “does not advocate for one parent or the other,” but they “document and record factual allegations as it pertains to visitation periods.” The parent who is ordered to conduct visitation through S.A.F.E. is responsible for paying the costs of the visitation session at a rate of $60 per visitation fee. While a parents visitation may be ordered through the S.A.F.E. program.
In order to have a situation where a family member or close friend is able to host a supervised visitation event, the parties must agree on a person to use and the judge must find that to be in the best interest of the child. These situations generally occur where the parties have acknowledged their unpleasant history, but wish to not subject their children to the sometimes unpleasantness of a public visitation. Additionally, parents may agree to not have their children in an unfamiliar surrounding and choose a relatives home to make the visitation more comfortable.
Supervised visitation is not permanent. A parent may modify the court order if the parent can prove that the child would be safe in the parent’s care and that it is in the best interest of the child to have “normal” visitation with the parent.
Sole Managing Conservatorship
It is presumed that the appointment of the parents as joint managing conservators is in the best interest of the child. However, a finding of a history of family violence involving the parents removes this presumption. The primary parent will be named the sole managing conservator and the abusive parent will be named possessory parent. There is a lasting effect on children who witness domestic violence. With this public policy concern, a judge will make a custody determination that will best serve the child’s physical and emotional needs.
While joint managing conservators usually share in the rights and duties of a child; a court may give the sole managing conservator exclusive rights and order that a parent named who is named possessory conservator have none of the most basic parental rights. Examples include the right to consult with a physician, dentist, or psychologist of the child; to attend school activities or even to be designated on the child’s records as a person to be notified in case of an emergency.
Family Law is inherently an emotionally driven field and it can become more complicated and overwhelming when a person has been the subject of abuse. While Hulu’s The Handmaids Tale has yet to show June/ Offred escaping the abusive and oppressive nature of the fictional Gilead, there is an avenue of rights and protections within Texas Family Law for victims of domestic abuse who must continue to co-parent and even co-exist with their abuser.
October is Domestic Violence Awareness Month which seeks to connect advocates across the nation who are working to end violence against women and their children. If you or your family member is a victim of domestic violence, use the Texas Family Violence Resource Center to locate nearby programs or shelters for help.
The Putman Firm, PLLC is a family law litigation firm that handles a wide array of family matters including criminal matters that intersect family law, i.e. family violence assault cases, protective orders (criminal and civil) and allegations of child abuse. If family violence is a part of your life and you are facing a legal matter, contact The Putman Firm, PLLC at (281) 501-9033.