What Is a Protective Order?

A protective order is a court order designed to protect victims of family violence, dating violence, sexual assault, stalking, or trafficking from future harm. In family law cases, protective orders most commonly arise when one spouse, former spouse, dating partner, or family member has committed family violence or has made credible threats that family violence is likely to occur again.

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Unlike a divorce or child custody order, the primary purpose of a protective order is not to determine property rights or possession schedules. Its purpose is to protect the physical safety of the victim and, when appropriate, the victim’s children.

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Protective orders are governed primarily by Title 4 of the Texas Family Code, beginning with Chapter 81.

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What Is Family Violence?

Not every argument or disagreement between spouses constitutes family violence.

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The Texas Family Code defines family violence in Section 71.004 as an act by one member of a family or household against another that is intended to result in physical harm, bodily injury, assault, or sexual assault, or a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault. The definition also includes certain forms of abuse directed toward a child.

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Importantly, the statute specifically provides that defensive measures taken to protect oneself do not constitute family violence.

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The focus of the court is whether violence has occurred or whether future violence is likely to occur—not whether the parties simply have a difficult relationship.

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What Must Be Proven?

To issue a final protective order, the court must generally find that family violence has occurred and that family violence is likely to occur in the future. See Tex. Fam. Code § 85.001.

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Both findings are important.

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A single allegation, standing alone, does not automatically result in a protective order. Likewise, evidence of prior violence may be insufficient if the court concludes that future family violence is unlikely.

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The court evaluates all of the surrounding facts, including prior incidents, threats, criminal history, witness testimony, photographs, medical records, text messages, law enforcement reports, recordings, and other admissible evidence.

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What Can a Protective Order Do?

Protective orders provide courts with broad authority to protect victims and children from future harm.

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Depending upon the circumstances, the court may prohibit the respondent from committing additional family violence, communicating in a threatening or harassing manner, going near the protected person’s residence, workplace, school, or other specifically identified locations, possessing firearms where prohibited by law, or engaging in other conduct that threatens the safety of the protected person.

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The court may also establish temporary possession schedules for children, require supervised visitation, or prohibit contact altogether if necessary to protect the child.

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Every protective order is tailored to the facts of the individual case.

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Can Someone Be Removed From the Home?

Yes.

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One of the most significant remedies available in family violence cases is the court’s authority to exclude an individual from the residence under appropriate circumstances.

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If the statutory requirements are satisfied, the court may order the respondent to vacate the residence even if that person owns the home or is listed on the lease.

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This remedy differs significantly from the temporary restraining orders commonly entered in divorce cases. A standard temporary restraining order generally preserves the status quo but does not authorize one spouse to remove the other from the marital residence.

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A protective order, by contrast, may require the respondent to leave the home when necessary to protect the safety of the victim or the children.

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Protective Orders Can Affect Child Custody

Family violence is one of the most important issues a court considers when determining conservatorship and possession.

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Under Tex. Fam. Code § 153.004, a finding of family violence may prevent the court from appointing parents as Joint Managing Conservators and may instead support the appointment of one parent as Sole Managing Conservator.

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The court may also order supervised visitation, restrict possession, require exchanges through third parties, prohibit overnight visitation, or impose additional conditions designed to protect the child.

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Because conservatorship decisions focus upon the child’s best interest, findings of family violence often have lasting consequences well beyond the protective order itself.

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Protective Orders Are Separate From Criminal Cases

A protective order is generally a civil proceeding, even when criminal charges are also pending.

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A person may seek a protective order regardless of whether the respondent has been arrested or prosecuted.

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Likewise, the existence of a criminal investigation does not automatically result in the issuance of a protective order. Each proceeding follows its own legal standards and procedures.

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Because testimony given during a protective order hearing may affect related criminal proceedings, careful legal representation is often important when both cases are pending simultaneously.

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Violating a Protective Order Can Result in Criminal Penalties

Protective orders are court orders, and violations are taken very seriously.

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Depending upon the nature of the violation, a person accused of violating a protective order may face arrest, criminal prosecution, contempt proceedings, or additional restrictions imposed by the court.

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Even indirect violations, such as communicating through third parties or appearing at prohibited locations, may have significant legal consequences if they violate the terms of the order.

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Anyone subject to a protective order should carefully review its provisions and fully understand the restrictions imposed.

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Protective Orders Can Affect Firearm Rights

Federal and Texas law may restrict a person’s ability to possess firearms after the issuance of certain protective orders or following convictions involving family violence.

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Because these restrictions may affect constitutional rights, employment, military service, and professional licensing, protective order proceedings often carry consequences extending well beyond the family law case itself.

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Individuals involved in these proceedings should understand both the immediate and long-term effects that a protective order may have.

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Protective Orders Require Evidence

Judges do not issue protective orders solely because allegations have been made.

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Like every other contested family law matter, protective order hearings are decided on admissible evidence.

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Photographs of injuries, medical records, law enforcement reports, text messages, voicemail recordings, eyewitness testimony, surveillance footage, prior incidents of violence, and admissions made by the opposing party frequently become important evidence.

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Careful preservation of evidence before the hearing often strengthens a party’s ability to present a clear and credible case.

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Fergus & Tomanka Represents Clients Seeking and Defending Protective Orders

Protective order proceedings move quickly and often involve issues affecting personal safety, child custody, firearms, and future family law litigation. Whether you are seeking protection from family violence or responding to allegations made against you, early preparation and a thorough understanding of the evidence are essential.

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At Fergus & Tomanka, we represent clients throughout Central Texas in protective order proceedings, divorce, child custody disputes, family violence cases, and related litigation. We work to present clear, credible evidence while protecting our clients’ rights and the safety of their families.