What is a Protective Order and How Do You Get One?
Cindy Hide: Welcome to Love, Money & the Law. The subject is protective orders in domestic violence cases. I'm Cindy Hide, and my guest today is Jasmine Bhatt, an attorney from the Denton County Friends of Family, a non-profit organization that assist victims of sexual assault and domestic violence in Dallas. Welcome.
Jasmine Bhatt: Thank you, Cindy.
Cindy Hide: Let's start first with defining what a protective order is, and under what circumstances can you get one?
Jasmine Bhatt: Sure. Just simply speaking, a protective order is a court order that protects an individual from abuse or harassment by prohibiting certain behaviors of the abuser. Who can get a protective order? Anyone who's a victim of violence can apply for a protective order, whether they're married, whether they're just in a dating relationship, or whether they're separated.
Cindy Hide: What is the first step in getting one? If you're someone who's ... Let's say, let's start with a dating situation, that you find yourself in an abusive relationship and you just can't seem to get out of it, what should someone do under those circumstances?
Jasmine Bhatt: The first step would be that they would want to apply for a protective order. And how do they do that? There are a couple of ways to do it. The most common way to apply for a protective order would be going to the local district attorney's office. Every county will have a district attorney, and showing up at the actual office, it will generally be a specific unit geared towards either family violence, or protective orders specifically, or just generally in civil court.
Cindy Hide: This is a confidential process, right?
Jasmine Bhatt: It is.
Cindy Hide: And a victim needs to state exactly what happened. Then, who makes the decision whether or not it rises to the level of needing a protective order?
Jasmine Bhatt: It would go through a couple of different steps. First, you would apply for the protective order. You would literally go to the office. Depending on the county, it differs on how the application process is done, but generally, you can go to the district attorney’s office. You'll have to fill out some paperwork, and they'll ask you various questions about the relationship.
Jasmine Bhatt: In Texas, especially the two things that you need to satisfy in order to get a protective order is you have to establish that family violence has occurred. And the second thing you have to show is that it's likely to occur in the future. The questions on the application will reflect those two prongs. They'll ask about the history of violence, ask if you're scared, ask if you've made any police reports.
Jasmine Bhatt: None of those things are necessary. You don't have to have made a police report, but some of those details can really help when it comes time for the assessment to be made on whether this individual qualifies for a protective order.
Cindy Hide: What if something's only happened one time? What about that?
Jasmine Bhatt: You can still use it and apply. That might change the direction of whether you'll actually get the protective order. While you can apply with whatever your facts are, if your facts are it's happened one time, that doesn't mean you won't get a protective order.
Jasmine Bhatt: It could possibly make it more difficult, depending on the specific facts. For example, if it was one time, but the act of violence was severe, say there was strangulation, say that there was a weapon involved, say that the one incident consisted of multiple injuries, that might be just enough.
Cindy Hide: I would hope so.
Jasmine Bhatt: And so ultimately, it goes to another part of your question is who makes that determination? Court would make that determination, so after the application, you will get a hearing date set, generally within two weeks of the application.
Cindy Hide: All right. Let's talk for a minute about that two-week period or some other period of time, because if you're in a situation, whether you're in a dating relationship, you're living with someone, or this is your husband or your wife, two weeks can be an eternity if there is a threat of harm.
Cindy Hide: What you should do, if anything, to prepare yourself, your physical circumstances, to be safe when you report, an exit plan, maybe anticipating some possible retaliation, because I know that happens as well. What are the most prudent steps for someone to take after an act of violence has occurred?
Jasmine Bhatt: Absolutely, and there are a couple of things that are important there. Before going into safety planning, one thing that can be available when you apply for a protective order in the state of Texas and throughout, I think various jurisdictions will have something similar, even if it's not called the same thing, but a temporary ex parte protective order can be issued immediately.
Jasmine Bhatt: If you're waiting for two weeks for your hearing, many times, a person needs protection in the meantime, court-ordered protection. Prior to the hearing date, you can request something called a temporary ex parte protective order.
Cindy Hide: Now, what does "ex parte" mean? For those who are not familiar with that term.
Jasmine Bhatt: Ex parte means that you can get this order without a hearing, essentially. A lawyer can approach the judge and say, "Look, we have a protective order hearing coming up in two weeks. We think that there are some grave safety concerns in the meantime, so we're asking you, Judge, to issue this temporary order so that this person is protected in the meantime until we can get to a hearing."
Cindy Hide: Okay, so let's stop right there for a minute. We're going to court with a lawyer, so there might be two circumstances. There may or may not be financial resources to retain an attorney to do that. And if there are, what sort of attorney should you call to help you through the system? If you're not going through a non-profit organization such as the one that you work with, where there are resources to assist through the system, is that right?
Jasmine Bhatt: Yes. If you go through the district attorney's office, it's of no fee to you, and the district attorney's office will be your attorney.
Cindy Hide: But you may also employ a private attorney to apply, right?
Jasmine Bhatt: Absolutely. There are some situations where a district attorney's office will not represent you in a protective order. Say there's a CPS case pending in that same country, sometimes that county will say, "Well, we can't represent you, because we've got some concerns." If that happens, that is okay. You can still apply for a protective order through a private attorney.
Jasmine Bhatt: Now the choice comes, "Do I retain one on my own? Am I paying somebody? Or can I get some assistance?" Most states, they have some legal aid programs. Either a non-profit organization, a legal aid of that state. There's legal hotlines that you can access through just even a Google search, and you can call them and say, "Look, I have a need for a protective order, and I need some assistance."
Jasmine Bhatt: A, you want to go to a private attorney that handles these type of cases, a family law attorney would be ideal, that has done protective orders before, that can help you navigate through some of these family violence issues. Or you can reach out to a non-profit if you don't have the money for a lawyer, which many people don't. A lot of non-profits have the funding to assist you if you make under a certain amount of money per year.
Jasmine Bhatt: Or you're just in grave danger. Sometimes money isn't even the biggest thing that a non-profit will consider. If you're in threat of some sort of imminent harm, a non-profit would possibly take your case, or a legal aid or a hotline could help direct you to some attorneys that would help you either at a low cost or no cost.
Cindy Hide: And often times, cost is not a factor. I think it's important to emphasize that these sorts of scenarios happen in all levels of socioeconomic categories, let's say. Domestic violence is something that occurs everywhere, unfortunately, whether there's money in that household or there's not.
Cindy Hide: In many cases, perhaps shame involved, or they're afraid to reach out for retaliation. Or there could be just a whole myriad of possibilities for not bringing this forward, or not speaking up to anyone. It's important for people to know that, number one, if you do retain a private attorney, that everything is strictly confidential, and also through a non-profit agency, that would also be the case, as well as a district attorney's office.
Jasmine Bhatt: Absolutely. There's so many reasons why violence isn't reported. It's all about control. It's all about control. There's a lot of coercion. There's a lot of financial coercion, if that's an issue. There are children involved many times, fear of retaliation, like you said, fear of deportation or immigration issues. There's so many things, so many moving parts, and so many concerns that, yes, all of it is confidential.
Jasmine Bhatt: Even a consultation would be confidential, so if somebody were to come to a non-profit agency to a lawyer, and speak about some of these issues, they are confidential. The only times that that confidentiality would be broken is if a child is in danger or the person, the attorney that you're consulting with, has some real concerns about somebody's life being threatened, essentially.
Cindy Hide: Are there any circumstances or reasons for not being able to get a protective order?
Jasmine Bhatt: The two prongs that we were discussing earlier in order to get a protective order, you have to show that family violence occurred, and that it's likely to occur in the future. A person could not get a protective order if they can't establish those two things. How do you establish those two things?
Jasmine Bhatt: The first prong of family violence has occurred is arguably a little easier to establish, right? If you've got pictures or you've got witness testimony or your testimony alone can be enough, that this happened to me and a court believes that. You can establish that, "Okay, this incident happened. Family violence has happened."
Jasmine Bhatt: The second prong, that it's likely to occur in the future, is a little bit more difficult to establish, because you've got to show that this happened before, so it's going to happen again. Sometimes, that's not enough. Some ways to go ahead and establish that would be if you've got threats. If you've got, this has been happening for months or years and you've got continuous threats. If you can't rise to that level to show that this is probably going to happen again, due to past behavior, due to threats-
Cindy Hide: How far back can you go with respect to an incident in order to be able to apply for one? Let's say something happened several months ago, but now it looks like things are heating up again and you're afraid. Would that be grounds for the possibility of applying, or what are the guidelines?
Jasmine Bhatt: Yeah. It differs in every state and every jurisdiction, because generally, this is a code through the law, so you'd always want to check in your state what the exact law is, but in the state of Texas and many other states, you have to show that that violence has occurred in the last two years.
Jasmine Bhatt: Say there was an incidence of violence a year ago, and then things calmed down, and then something happened again three months ago or something happened a week ago. You can talk about all of those things in applying for a protective order. You don't lose it just because it happened six months ago and you didn't request it then. If something pops up to show that there's some sort of imminent danger to you, or you believe that there's an imminent danger to you, you could very well apply for a protective order.
Cindy Hide: So where something comes up again, but you can't go in six months after the fact, after the previous occurrence, and say, "Six months ago, this happened."
Jasmine Bhatt: Now, you can. However, remember, you can, but that takes away from the prongs that you have to establish in order to get a protective order. Sure, you can apply. Say something happened six months ago, and today, you decide you want to apply for the protective order. You can surely apply. Now, that could really affect your chances of being able to obtain the protective order.
Cindy Hide: All right, and how long can one last? And under what circumstances can ... I know there's different levels, different periods of duration, so what's the longest protective order you're able to obtain?
Jasmine Bhatt: Sure, and again, just like everything else about protective orders, it does depend on your state and your jurisdiction, but the law is, in Texas, they're for two years. That's the average time that a protective order is granted for, two years or less. However, there are some caveats. If the abuser has committed a crime that equals a felony, whether or not they have been charged with that felony, the victim can request a protective order for longer than two years. I've seen protective orders run as long as 15 years, 20 years.
Cindy Hide: Oh my goodness.
Jasmine Bhatt: Just depending on the facts of the case, and again, depending on where you are and what the law is where you are.
Cindy Hide: Okay. Very specifically, what might be some of the terms? In other words, you could get a protective order for, say, "Okay, you can't come within so many feet of my residence or of my person." What do the terms of a protective order typically look like?
Jasmine Bhatt: Yeah. That's great. What does a protective order cover? Generally, it covers the home. A protective order isn't something that just moves with you everywhere you go. It protects you in certain places from certain behaviors. For example, your home, your place of business. It'll say, sometimes it's 500 yards. It just depends on the order that you draft, but generally, we do 500 yards.
Jasmine Bhatt: The abuser can't come within 500 yards of the residence, of place of work, daycare. Sometimes churches are included. Any place that the victim frequents, they can request to be protected within the protective order. Harassing and threatening behavior, even through a third party. A lot of times, there will be an abuser that calls over and over and over.
Jasmine Bhatt: Maybe they're not saying anything in particular. Maybe they're not leaving a voicemail, but that in itself demonstrates to this victim that, "Oh, this person is trying to get ahold of me." Causing severe stress, possibly contacting their family members, their job. They're calling their job, so a protective order can prohibit them from all of that.
Jasmine Bhatt: In some situations, for good cause shown, it can also prohibit any kind of contact, so especially when there are no children involved, courts will often grant that, that there's no reason that these two people need to speak. We can prohibit any kind of communication from the abuser to the victim.
Jasmine Bhatt: Or they can limit the communication, so protective orders can also say ... So say there are children involved. The protective order can say, "You can only communicate with the mother of your children," or the father of your children, depending on who the victim is. Generally speaking, it is the woman in cases that I personally see. "You can only speak with them through email, this many times a week, regarding only the children." And if that's violated in any way, then that is a violation of the protective order, and that could lead to, how do you enforce it?
Cindy Hide: You mentioned earlier that the protective order does not follow you around. It's specific to locations. That doesn't necessarily give me a whole lot of comfort if I'm a victim. Are there other terms in the protective order that might make me feel a little better about any kind of harassing activity, or turning around and, "Uh oh, there he is," or, "There she is?" How is that addressed?
Jasmine Bhatt: Sure. It's not a bubble. It doesn't follow you everywhere you go, but there are a lot of other protections besides, "This person can't come to your home, or to your school, or to your place of business." Also, it prohibits from harassing and stalking behavior. It prohibits from third party harassing and stalking behavior.
Jasmine Bhatt: For example, if you're at a Wal-Mart and you see your abuser, and you have a protective order against this person, it would serve that person well to leave after knowing that you're there. They're not violating the protective order by being at the Wal-Mart, but if they're at the Wal-Mart, and then they start following you around or they start talking to you, and say that protective order says that they can't communicate with you at all. That's a violation.
Jasmine Bhatt: If they continuously follow you, that could be considered harassing behavior. That's a violation, so while it's not a violation for them to simply be there, there are other protections involved in a protective order that could be enforceable.
Cindy Hide: Okay, so while we're talking about enforcement, what are the consequences, first of all, for a perpetrator? Are there any other consequences in their life?
Jasmine Bhatt: Absolutely. One of the biggest benefits of a protective order is that it's criminally enforceable. If there's a violation of this protective order, if this person violates a protective order that's against them, they can be charged with a Class A Misdemeanor, which could result in some jail time, just depending on how that is prosecuted. It might not, but it could.
Jasmine Bhatt: If somebody continuously violates a protective order, it could be charged as a felony. That provides a high level of accountability with the protective order, because most people, when they know that, "Hey, I can go to jail for this," it can be a deterrent. It isn't always a deterrent, but it can be a pretty strong deterrent.
Cindy Hide: Now, if you are a party to a protective order in this respect, you also are not able to carry a gun or hold a license to carry a gun. Is that right?
Jasmine Bhatt: That is right. You can't have a firearm. Again, checking every state, but most states, you cannot have a firearm if you have a protective order.
Cindy Hide: Okay. We're talking about the criminal protective order. There is such a thing as a civil protective order, such as we routinely file in family law cases, but this is primarily directed toward the financials. It's restraining those from going out and buying a new Mercedes, or buying whatever during the pendency of a divorce, for example. I think it's also important to know that a civil restraining order is something very different from a criminal protective order, and I just wanted to make that distinction.
Jasmine Bhatt: Absolutely. Many times, in a divorce or a custody case, there's something, a temporary ... or, I'm sorry, any kind of restraining order can be established. When most people hear "protective order," they think of a restraining order, and so a lot of questions that we get is, "Well, what does that mean? What is the difference?"
Jasmine Bhatt: A restraining order, generally, prohibits a party from doing various things. If there's a divorce pending, changing your bank account or closing your bank account or withdrawing a whole bunch of money. It can also restrain somebody from committing acts of violence, but a restraining order is different from a protective order.
Jasmine Bhatt: Because say a restraining order says, "Okay, you can't take money out of the account. You can't commit family violence." And the person does those things anyway. The way that's enforced is you have to ask the court-
Cindy Hide: Go to court.
Jasmine Bhatt: Go to court, you say, "Please enforce this order." And the way it's enforced is, it could be through contempt. The way that it's enforced is different, I think, is the biggest distinction. With a protective order, you call the police. You have a protective order. It says, "You can't harm me. You can't harass me. You can't threaten me." It's to protect this person, and potentially the children as well.
Jasmine Bhatt: If this protective order is violated, you don't need to go to court and say, "Hey, I want to enforce this order," and start a whole new process through the court system. You call the police, and ideally, the police will issue a warrant. It goes through the criminal justice system versus you having to go try to enforce it in a civil court.
Cindy Hide: All right, excellent. Is there anything else you'd like to add before we close?
Jasmine Bhatt: I think one thing I'd like to touch on before we close is children. A lot of times, these protective orders include children. For example, if there's a family, and Mom and Dad have two kids together, and there was an act of violence by Dad to Mom, for example. And Mom leaves the home, has the kids with her, gets a protective order and wants to include the kids, this protective order does the same thing for the kids as it does for Mom.
Jasmine Bhatt: Can't harass, can't threaten, can't stalk. Maybe can't come to the daycare? One of the biggest misconceptions is that a protective order is also a custody order. I think it's very important for someone to know that, even if they have a protective order, and their children are included, that doesn't prohibit the abuser from having possession and access to these kids.
Jasmine Bhatt: There generally, of course depending on what state you're in, and I know I keep saying that, but I think that's a very important thing for everyone to know is that it does depend on where you live. But you also will need to pursue a custody order as well. It's possible to have a custody order and a protective order at the same time, and find a way for them to work together through the custody order.
Jasmine Bhatt: If a protective order is in place first, many times, there's the custody order that takes into account the protections of the protective order, and there are some protections put into place. There will be a neutral exchange location. If there's a custody order stating that these kids can have visits with the abuser.
Cindy Hide: Or supervised visitation.
Jasmine Bhatt: Or supervised visitation, exactly. A protective order can be in place along with a custody order, and they're not the same thing. And that's a very important distinction to make, I think.
Cindy Hide: I think also, we've made it clear that legal counsel is extremely important in these types of cases.
Jasmine Bhatt: One thing that people should know is that there are a lot of resources out there. It feels a little bit hopeless, I think, when you have all this happening in your life. Generally, you're at the most emotionally vulnerable place when some of these things are happening. They're very, very, very traumatizing experiences-
Cindy Hide: It's frightening, yes.
Jasmine Bhatt: And very scary. Just to know that there are resources and there is help available through non-profits, through legal aid hotlines. I really encourage people to go pursue some of these things. There are many times that attorneys will take cases at a lower bono rate to help with some of these issues. There's so many moving parts all of the time, and the court system is very complicated. There can be multiple orders being issued at the same time, that having legal representation would be ideal.
Cindy Hide: Is a must, yes.
Jasmine Bhatt: I think it's a must. Technically you can do it on your own, but I wouldn't recommend that. I would recommend consulting with some attorneys.
Cindy Hide: I wouldn't try it either. Thank you, Jasmine, very much for being with me today, and sharing your insights into protective orders in domestic violence cases.
Jasmine Bhatt: Thank you, Cindy.
Cindy Hide: I'm Cindy Hide. That's all for now on Love, Money & the Law. Thank you for joining.