Interviewer: When the police make an arrest, it is usually the husband?
Attorney Churak: It used to be the man, and now it’s probably 70/30%; 70% male, 30% female. They’re starting to arrest women now because there are situations where the husband is the one that is physically assaulted and it is the woman that goes off to jail.
Interviewer: What will happen when someone’s arrested?
Attorney Churak: The party is placed in custody. They’re taken down to the magistrate’s office. They’re read their rights with the charges against them. There’s usually, on family violence cases, if it is a misdemeanor, a $3,500 bond that they’ll have to post to be released.
Depending on the specific circumstances, if the misdemeanor charge turns into a felony charge, the amount of the bond will be more expensive.
Interviewer: Is there a protective order that’s put in place?
Attorney Churak: There is sometimes. There are two types of protective orders that we have in Texas. The first one is called the Temporary Magistrate Order, which is issued by the magistrate and it’s good for 90 days, and it’s ex parte done and that just keeps the person away from each other for that time period.
The other type is a protective order under the family code. That one is imposed for more serious situations. That requires a hearing and notice and it could be issued for up to two years.
It may stipulate that you’re to stay away from whoever the complaining witness is, as well as any children that may be involved in the household, which becomes really serious when you have a married relationship and these protective orders are issued, because the DA usually picks them up.
The DA is not really qualified to handle family law cases. What usually occurs is they obtain a standard protective order, which reads “stay away from the alleged victim and the children.”
I’ve been in situations with the District Attorney’s office on a number of occasions with these protective orders. In these cases, I make them try the child custody issue because technically, the code says that the alleged perpetrator is supposed to be allowed to have visitation. You can’t just do a blanket “keep them out of the house, keep them away from the children,” order of protection.
This happens does occur in divorces. It is known to happen in divorce situations because that order is a good way to keep the husband away from the kids, especially if they think there’s going to be a custody issue or the spouse simply doesn’t want the husband to see the children. They obtain a protective order and all of a sudden, the father can’t see his children because he’s alleged to have assaulted his spouse.
Interviewer: Will clients seek you out at this point to modify the protective order?
Attorney Churak: You can modify the protective order but it’s really difficult. It is best for an attorney to become involved at the very beginning. What happens is that the client is served with papers with the protective order in it. It’s usually after the time the client has been arrested.
Many times, they serve the client with a protective order on the first court date, and then there’s a hearing within approximately 14 days of the protective order being issued. At that hearing is when your attorney has to come out full barrel. Predominately, this hearing works as a discovery proceeding on a criminal case and if there are children involved, you can work with the judge to set up visitation rights.
Oftentimes, I’ve seen the case resolve where we have the protective order dismissed in the civil case and the District Attorney has turned around and filed a criminal case. It’s a strange deal sometimes with these cases. The DA’s office has a separate family violence section. All they do is family violence cases.