I Had No Idea That Would Happen: Collateral Consequences of Family Violence Cases
By: Sam Bassett
There are several collateral consequences in family law cases that arise when a finding of family violence is made or when a person is arrested for family violence. Emergency Protective Orders allow a judge to issue a protective order without a prior hearing if the person was arrested for a family violence-related offense. In a case where serious bodily injury is alleged or where a deadly weapon is involved, a judge must issue this type of protective order before the defendant can be released from jail. The second type of protective order can be filed by the District Attorney, and are often filed by private attorneys on behalf of their clients. These applications must contain a sworn statement by the victim, describing the family violence that occurred and the need for protection. The court must make a finding that there is a clear and present danger of family violence; that family violence has occurred and that family violence is likely to occur in the future.
Family violence can also affect a person’s right to carry a weapon, and may result in that person’s deportation. Texas state law provides that a person who has been convicted of assault family violence cannot possess a firearm for a period of five years after their release from jail or probation. Additionally, a person who has been served with an emergency protective order may not possess a firearm until the order expires. Any alien who is convicted for a crime of domestic violence or who violates a protective order is subject to deportation. If the alien is in the United States illegally and is convicted of a crime of domestic violence that alien may never be granted legal alien status.
A finding of family violence will affect child custody arrangements and may make the victim eligible for spousal maintenance. A court cannot appoint the parties as joint managing conservators if there is credible evidence that a party has a history or pattern of child neglect, or physical or sexual abuse against the other parent or a child. A victim of family violence in a divorce proceeding may be eligible for spousal maintenance regardless of the length of the marriage. Normally, without a finding of family violence, the marriage must have lasted at least ten years and meet other requirements in order for a spouse to be eligible for spousal maintenance. The amount of maintenance can be up to $2,500 per month and can last for up to 3 years.
Summarized from Voice for the Defense Vol. 40 No. 1