According to various studies, COVID-19 lockdowns exacerbated family and domestic violence disputes.  Not surprising considering that periods involving natural disasters, economic crises, and civil unrest have historically seen an uptick in family-related violence.  However, the lockdowns created a unique opportunity for family violence perpetrators to isolate victims who had few opportunities for escape and even fewer resources for intervention and prevention.  In Texas, the San Antonio Police Department reported an 18% increase in domestic dispute calls in 2020.  ABC-13 Investigators reported that family violence-related homicides in Houston nearly doubled since the pandemic.  And these are only the reported incidents.  Many victims of family violence fail to report the abuse due to shame and fear that the abuse will only get worse and may extend to children, family members, and friends who try to intervene.  Coupled with isolation, the pandemic, by all accounts, created an epidemic of family violence.  

My post-COVID family law practice has experienced the same uptick in terms of domestic violence outcries.  Prior to 2020, I could count on my hand the number of protective order cases my firm handled in a given year.  Since the pandemic, I receive calls nearly every week from potential clients seeking to either prosecute or defend against a family violence protective order.  Some have been legitimate, while others were tantamount to gamesmanship and forum shopping, designed to gain a leg up in contentious divorce or custody battles.  Given current Texas legislation, I anticipate an even further surge in family violence litigation in the coming months.

Title 4 of the Texas Family Code has provided victims of domestic violence for decades the opportunity to apply for and secure family violence protective orders to prevent their abusers from coming within a certain number of feet of them, contacting them, remaining in the same place as them, as well as a host of other remedies.  In terms of Texas civil remedies, a family violence protective order is among the most severe and far-reaching.  The same has been espoused by Texas courts for years, finding that these necessary vehicles carry “significant collateral repercussions and a social stigma” and special gravity not found in other civil contexts.

The issuance of a family violence protective order can completely change the landscape of an independent child custody case, or even a divorce case for that matter.  For the past few years, at least in Harris County, Texas, it became almost standard practice for a child custody or divorce litigant to maintain a separate protective order proceeding in another court to attempt to gain a tactical advantage. Doing so may have gotten these litigants a more sympathetic judge in the protective order court, who would then issue a family violence protective order which would have devastating consequences in the separate child custody or divorce litigation.

Up until this year, to be entitled to a family violence protective order, the applicant had to prove not only that family violence had occurred but that it was likely to occur in the future.  The second prong – likely to occur in the future – gave judges a lot of discretion in terms of granting and denying requests for protective orders.  As a result, different courts and different jurisdictions often had conflicting standards for issuing family violence protective orders – some doling them out like candy and others rarely granting the same.  But the second prong also carved out a specific identity for the Title 4 protective order, setting it apart from a magistrate’s order of emergency protection issued by a criminal court when a person is charged with a crime that is also family violence (like assault of a family member).  By requiring a showing of more than just an act of family violence, the second prong of a Title 4 protective order demonstrated that the remedy served a different purpose and need than the types of orders issued by criminal courts and made available to victims of assault, stalking, and human trafficking.

To address in part the family violence epidemic, and to create a more uniform approach to the granting of family violence protective orders, the 88th Texas Legislature just enrolled and sent to Governor Abbott, House Bill 1432 which removes the second prong of the analysis.  As of September 1, 2023 (assuming Abbott signs the Bill), in Texas, if a court finds that one, single act of family violence has occurred, it will be required to issue a family violence protective order.  

The Legislative purpose of the Bill was to bring family violence protective orders in line with the standard imposed for a protective order for stalking, sexual assault, or human trafficking, which does not require a finding of “likely to occur again.”  For victims of family violence, the law is music to their ears, removing a discretionary provision that was difficult to prove and often resulted in conflicting appellate opinions.  But, for those faced with family violence allegations in divorce or custody suits, where the evidence and testimony is often he said, she said, with no proof except the statement of the alleged victim, the outlook seems pretty grim.

For attorneys and judges, the change to Title 4 raises interesting legal and philosophical questions: Why did Title 4—a set of civil statutes—need to match criminal law statutes in the first place, when the criminal statutes are employed by completely different courts and subject to completely different burdens of proof? Did Title 4’s second prong really create a barrier to aid for victims of domestic violence that was not available in a criminal court? How will removal of the second prong change the nature and purpose of Title 4 protective order proceedings? Will it increase access for victims, or will it instead increase false or flimsy allegations, forum shopping, and custody litigation gamesmanship? And what will become of the judge’s discretion, if a court is required to issue a protective order if family violence has occurred even though, under the circumstances of a particular case, there may be no risk of future family violence occurring? Time will tell if House Bill 1432 becomes law.

UPDATE (7.18.23): Governor Abbott signed HB 1432 on June 12, 2023 removing any required finding of future family violence as a prerequisite for the issuance of a protective order under Title 4 of the Texas Family Code. The new bill becomes effective September 1, 2023.

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Photo of Taylor Toombs Imel Taylor Toombs Imel

Taylor Toombs Imel was selected to the Top 50 Women Lawyers in Texas by Super Lawyers in 2022, as a Texas Rising Star for the past five years, and a Rising Star Top 100 Lawyer and Top 50 Up-and-Coming Women Lawyers in 2021.

Taylor Toombs Imel was selected to the Top 50 Women Lawyers in Texas by Super Lawyers in 2022, as a Texas Rising Star for the past five years, and a Rising Star Top 100 Lawyer and Top 50 Up-and-Coming Women Lawyers in 2021. She was also named among a “Women to Watch” in the Women Who Mean Business by the Houston Business Journal in 2021.

Photo of Walter J. Schouten, Jr. Walter J. Schouten, Jr.

Licensed in 2014 but working in the field of family law since 2009, Walter J. Schouten has worked with, for, and against some of the best family law attorneys in the Houston area on complex family law issues at both the trial court…

Licensed in 2014 but working in the field of family law since 2009, Walter J. Schouten has worked with, for, and against some of the best family law attorneys in the Houston area on complex family law issues at both the trial court level and appellate level. Walter’s desire to work with the best is driven by a results-oriented approach adopted as early as law school: in 2013, he graduated summa cum laude from South Texas College of Law, higher than over 90% of his graduating class, earning the highest grade in multiple courses along the way, all while working as a law clerk at a boutique family law firm in Houston.