A temporary restraining order, commonly known as a “TRO” is used in family law to place injunctions without a full hearing on one or both parties. These injunctions prohibit specific actions that could endanger or prove damaging to the property in a divorce or the children of a divorce. You should have an idea on what the process entails.
A TRO is governed by Texas Rules of Civil Procedure Rule 680 and Texas Family Code § 150.001. If your spouse wishes to file a TRO that immediately excludes you from possession of or access to your children, a notice of this hearing must be given to you prior to the court date. The only exception to this is an Ex-Parte meeting with the judge, which means that only your spouse or her attorney will be present at the preliminary hearing. The judge may order a TRO Ex-Parte only if the TRO clearly demonstrates from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant or children before notice can be served and an actual hearing.
If you are on the receiving end of TRO and it prohibits you from access to your children, there are some things to keep in mind.
First: a TRO has a time limit, which is 14 days. After 14 days the TRO may be extended by a judge only once for an additional 14 days. Thus at most this TRO may only last 28 days’ absent agreement to an additional extension. A Judge does have the discretion to extend the TRO more than once if it is uncontested (you do nothing or do not appear).
Second: A TRO is NOT a Protective Order. This means that the police cannot kick you out of your house or forcibly arrest you for violating a TRO, absent any related criminal conduct. There are consequences for violating the TRO but not criminal consequence. You may be found in contempt of court by the Judge who ordered the TRO and forced to pay fines or be held to more severe sanctions. Violations will not be good for your case if you intentionally violate.
Third: A TRO must have a signed and notarized Affidavit or a verified pleading attached to the motion. If the opposing counsel did not follow these procedures the order may upon motion to dissolve be found void due to violation of the Texas Rules of Civil Procedure.
Fourth: You cannot practically appeal a TRO because it may only last for at most 28 days, if contested. Once you are served with the Ex-Parte TRO, you may request a motion to modify or dissolve the TRO after giving your spouse 48-hour notice and seek attorney fees if the filing was false or frivolous.
TRO’s are civil injunctions that are usually given without notice only if immediate and irreparable injury, loss, or damage will happen. The proof rules are more relaxed in Family Law Cases. Specific TRO procedures can differ in all counties and in different courts so make sure the check online the rules of each specific jurisdiction.
TRO’s only last 14 days and cannot be enforced by police officers, absent related criminal activity. Do not be distressed if you are served a TRO one day while you are battling your spouse for child custody or property. Take a deep breath call your attorney and set a hearing to modify, vacate or dissolve the TRO.
Many counties have standing orders that issue and are effective as to both parties upon the filing of a Family Law Proceeding. Read such mandatory orders before you file your case.
Now that the Texas Legislature has ended, we will review some of the bills passed that will affect our Family Law Cases.
S.B. 814 Waivers of Citations in Certain Family Law Suits
Currently, the state of Texas allows for a parties involved in a divorce to waive service. Loosely translated, that means that the person named in the divorce suit can sign a paper which proactively tells the relevant court that they are officially aware their spouse is filing for divorce. This waiver means they don’t have to physically be served with the divorce papers by their spouse or a process server, potentially saving everyone involved a bit of time, money, and maybe some emotional pain
S.B. 814 was introduced to further the use of such waivers to apply to other common family law matters.
The waiver should also be used for:
- Suits to remove disability of a minor (commonly referred to as emancipation)
- Suits to change the name of an adult or child
- Any suits relating to a parent-child relationship
The bill passed and will take effect on September 1, 2015.
S.B. 817: Issuance of a protective order and appointment of a managing conservator in certain family law proceedings.
S.B. 817 proposes that the state change the language on applications for protective orders (restraining orders, etc.) by switching the word “victim” with the phrase “applicant for a protective order.” Specifically, this change is meant to help those people who are applying for the protective order on behalf of the actual victim of the abuse or violence.
Some judges are currently reluctant to sign orders which list the applicant as a “victim” because doing so indirectly endorses the allegations of abuse as being true without a trial. With the label change, it removes that concern and will enable judges to issue more orders to protect those in need.
The bill passed virtually unopposed, and will take effect on September 1, 2015.
S.B. 314: Appointment of a non-parent as managing conservator of a child.
This law addresses a growing number of complaints by relatives who assume custody of children removed from their parents’ homes by CPS (Child Protective Services). This type of custody is called “permanent managing conservatorship,” or PMC. It is not adoption and does not carry the same legal meaning, but many relatives claim that these differences are not clarified by CPS.
As a result, the bill requires a court awarding custody to specifically explain 3 common misunderstandings to the relatives or non-parents assuming PMC.
- PMC rights are specified by the court, and are not the same as rights associated with adoption
- The parent(s) can still request visitation, and can request to become the managing conservator
- PMC does not qualify nor disqualify the relative or non-parent for/from post-adoption benefits
The bill states that if the non-parent assuming PMC does not appear in court, the court must then have evidence that they were advised of this information.
The bill passed without opposition, and will take effect on September 1, 2015.
Many victims of domestic violence often refuse to leave an unsafe environment since many times they must leave their pet behind. These victims many times leave in such a hurry that their pets are unable to join them. The perpetrator of the domestic violence will threaten or harm the pet as a means to intimidate and gain leverage over their victims.
Texas SB 555 amends Family Law Section 85.021, to authorize a court in a protective order, to take certain actions, including prohibiting a party from removing a pet, companion animal, or assistance animal from the possession of the actual or constructive care of a person named in the order.
Texas SB 555 also amends Section 25.07 (Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case) of the Penal Code to expand the definition of “possession” to mean actual or constructive care of an animal. Finally, SB 555 now amends the current law relating to provisions in protective orders regarding pets and other companion animals and provides a penalty for any offense committed by a person if that person harms a pet!