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Domestic Violence

Episode 7 - Domestic Violence

 

 

Podcast_-_Episode_7
Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez P LLC. 
Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years. His license in both Texas and Florida. And he's a certified mediator. This podcast is for informational purposes only and all views are the opinions of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of. Welcome and we hope you enjoy the top Texas Lawyers podcast.

Good morning, good afternoon or good night wherever you happen to be. Welcome to the top Texas Lawyers podcast. I'm your host, Brian Abercrombie. And with me as always is my co-host, Samuel Sanchez. The ying to your yang, my friend. Yes, sir. So happy New Year to everybody. And today, we're going to be talking about a topic that can really have a significant impact on your family case or even on your life in general. So, Sam, what do you have when you talk a little bit about. Tell us what we're gong to cover today. Sure. We're going to talk about people making bad decisions.

You know, a lot of times that's a slippery celebrities. We've covered a couple of those high profile relationship breakups. I want to talk a little bit about Rihanna and Chris Brown. You know, obviously, they were quite the item.

It's been a minute, but when they broke up, they broke up over allegations of domestic violence. And that's really gonna be our topic for today's podcast is how to deal with domestic violence, potential issues that you may encounter and potential criminal and civil liabilities that can come from that as well.

And importantly, the important thing to realize is what it says is not just a fight between you and your spouse. Whenever domestic violence comes out that can affect your job, it can have criminal and complete implications. It can have civil implications. It can affect how can it affect your ability to have a hunting license or it can affect your ability to, you know, to practice your profession potentially.

So domestic violence issues are very, very tricky. There's something that you've got to be very, very careful about. And there's something that can have lasting long and lasting impact on you for your entire life. So let's let's get into it.

Well, I would tell people, you know, first and foremost, let's start at the inception. You know, a big part of domestic violence a lot of times is that people kind of look at it and say, well, why didn't I see it coming? You know, relationships are complicated. Obviously, you and I both know that. But in that situation, which you have to understand is there are definitely tendencies you want to make and do your due diligence. If you're getting into a new relationship, obviously in the social media world, do a little research, do a little background. I'm not saying go out and hire a private detective, but, you know, a simple white pages search a lot of times can bring to light. If anybody has a history, if they have a history, it doesn't mean they're a terrible person.

It just means that, you know, that's a red flag you should be wary of, because inevitably what ends up happening is you get into a relationship. It's much easier to walk away when you're married or to have children with somebody else. And the complexity that comes behind that is, as you know, relationships, like you said, are complicated. And in that, if you don't catch it upfront, a lot of times you get so dug in, you can't see your way out.

And that's an example. That's a really good point, because you're talking about in the world of dating apps. And, you know, you know, Bumble and whatever other dating apps are out there, there's a number of them. But you're getting the you know, you're getting the sales pitch on everybody on what their life looks like and how great they are.

And sometimes you have to you have to look under the surface and sort of peel back the onion, so to speak, in order to see what you know, what kind of. Because everybody has stuff.

So you've got to kind of sometimes you have to kind of dig in and see what see what's there. Absolutely. I mean, what you don't want to do is you don't want to buy the window dressing. Right. You just don't want to buy the covers.

Everybody says you want to read a little bit of the book, not just the, you know, the inner inner interlude.

What I will tell you, though, in that is a lot of things that can help.

We've talked a little bit about pre-nups shoes and we'll deal with those a little more in another podcast. But I would say this is a great opportunity as you get into a relationship. It seems like it's going to be something serious, potentially marriage, contemplate prenuptial agreement and terms that potentially can resolve any type of dispute.

If and when they come up, you can build those things into a prenuptial agreement that will tell you as if you're if we're in the world, the blended families. And that's something if you're married to somebody or you're getting married to somebody who has a domestic violence history or some some stuff pops up in your your ex finds out about it that can have serious implications on your custody arrangement. So it's it's definitely worth worth looking into if you're you're talking about a blended family.

Oh, yeah. Every degree, at least in the state of Texas and in the state of Florida has a mandatory disclosure requirement that says that if you are going to reside with somebody or be in a physical relationship, that you're going to be together. Somebody who has that history of domestic violence or family violence history, it has to be disclosed to the other party. And like you said, most of the time, that's going to be that's going to precipitate some court action.

On top of that, let's say, however, though, that you get into this relationships, you don't do a prenuptial. You decide, I want to marry this person. Why would I do that? I don't want to scare him off, get married. Then all of a sudden things turn south and he could be a one time event. People always want to say that domestic violence is like repeated.

Its over and over again. You know, month. A month of Sundays of getting beat up, put in the closet or whatever is that actions are gonna be taken and that's not necessarily the case.

It can precipitate court filings with one encounter. So and people always want to kind of discuss or when they come in for concerts and we'll talk about that. I don't know that I've definitely qualified to say that it's family violence and honestly that has some discretionary boundaries for the court because I've been in front of judges that feel like one party slap in the other party. Well, doggone it, you know, if they if it was a mutual mutual combat situation or somebody that was, you know, feeling that they were being threatened. It was a measure of self-defense then. It may not measure up to family life. However, I will tell you that those encounters more and more, because courts are hypersensitive, these situations can suffice for that type of a finding.

And that's the other thing, is how, especially in Texas, how subtle a domestic violence thing can actually become because you can get a ticket. Correct me if I'm wrong, Sam, but you can get a ticket now. You can get arrested for an assault by contact, which is basically offensive touching.

And if the the officer that's out there that writes you the ticket check, check marks the box that says domestic violence, then that technically could potentially if you plead guilty to that or no contest even that could potentially follow you around as a domestic violence, a domestic violence issue.

Absolutely. Without a doubt.

And to your point, they are far reaching because let's say that you did something like that. The other your other you know, your X finds out about it, wants to use it against you in court. You making that legal determination inadvertently can absolutely give them grounds. And those types of grounds have far reaching implications with Brady's implication. In Texas as an example.

It can be that you lose your right to possess a firearm, ammunition, attend school trips with your child, because most school districts now in the state of Texas have prohibitions for all children to be around.

People who are, you know, been the person who committed came with me because I have I've had a number of cases where we've had to go in and actually fight, you know, a fight, something as silly as a class C misdemeanor offensive touching ticket because because there's potential for a family violence conviction. If you if you if you plead guilty to it or just decide you want to pay the fine. And keep in mind that a classy misdemeanor offensive, you know, offensive touching is merely a traffic ticket. It's really the equivalent of a traffic ticket. And a lot of instances, because there's no injury, there's no there's no reason to ramp it up to a class B or class a misdemeanor. But if they if they take mark the box that says family violence, then that that potentially has a has a long lasting effect, then it can affect you. If you're ever charged with family violence again or have another another charge like that, then you immediately you your group immediately become a little and a lot more hot water.

Absolutely. And, you know, I always try to tell clients that, you know, as much as you can, whether you're female or male, you want to take the high road in any type of interaction.

And that becomes even more complicated if someone's intoxicated or under you know, under the. What am I trying to say?

Under the influence.

Thank you very much. Thank you. The influence of any type of narcotic or something that can alter their behavior.

And a lot of times, you know, you get to that situation, you say, like, what do I do? I mean, my intention was just to protect myself and my children. But here I am, somebody fault filed a false claim that they're there, that then when they were the perpetrator, I mean, all these things happen all the time. And the reason being is because those allegations, Brian, are extremely powerful in court and especially in a custody suit.

Those things carry a lot of weight in a custody suit. And people feel like they can get an upper hand in a custody suit if if there's anything. If one spouse is as an aggressor or an abuser and any other spouse is the victim, I mean, that's unfortunately human nature being what it is. And people wanting to win sometimes that that that prevails over logic and and and everything else.

And so you've got to be really, really careful about that. And in a situation where where everyone tells you you've got to take the high road, this is definitely a situation where you take the high road. And cooling off periods are a very good thing. If you need to leave the house for a while, then walk away from it. You know, for a couple hours. That's that's preferable to getting hauled away in a police car. I promise you.

Oh, without a doubt. And not only that, but, Brian, you know what? I try to tell clients and I know you've told them the same thing.

This type of claim, it's like the holy grail of claims because its impact is far reaching. It can affect a property division if it's a divorce. Meaning that somebody could get a disproportionate division of urban estate. It can affect conservatorship, meaning that instead of having the foundational basis of joint managing conservatorship in Texas. If somebody has been found guilty or pled guilty to those types of charges, then they instantly divert to sole managing conservatorship. If you've talked about a previous podcast, but that's that's huge. It can affect so many different things.

And not only that, correct me if I'm wrong, but the current state of the law is if you have a an actual conviction for family violence that precludes you from getting primary custody, at least for a period of time. It absolutely does. I believe it's two years, if I'm not mistaken.

I believe you are correct. Not only that, Brian, but like let's say, heck, you know what? We're not married. Why am I listening to this podcast? Because I'm not married to her.

We're like, let's say you're in a dating relationship. Guess what? There's civil liability that you don't have to be married. Absolutely. And so if somebody wants to sue somebody else and a bad breakup over there, you know.

Alleged domestic violence. Guess what?

Absolutely have the ability to win that case and get damages, money damages from that individual.

So it's far reaching. This topic can really kind of cross borders a lot.

And I think we always use the celebrity moniker because everybody knows celebrities and they're there. Unfortunately, their lives are out on the on the public scene, but made just the most recent ones. You know, you hear about you hear about Johnny Depp and Amber heard and you hear about all the domestic violence and all the ugly things that went on in their relationship.

And you have you know, you hear about Rihanna and Chris Brown and you hear, you know, it's every it seems like every week, you know, there's another, you know, celebrity with an allegation of family violence.

And a lot of times those are precipitated by drugs and alcohol. Absolutely. Absolutely. And I want everybody to understand, I mean, it's not one sided. It's not just, you know, male on female. It's same sex violence. You know, it's it's it's female on male. I mean, Lionel Richie is the perfect example. Example.

His case, you know, he will eat supper under that, you know, the yoke of domestic violence for years before he filed for divorce. Use that as a basis to keep the majority of his licensing and property. You know, it's intellectual property from his songs and his recordings to himself away from his wife.

Based on those types of allegations and assertions so he can embrace and love light.

Psychologist and psychiatrist will tell you that those you know, these types of physical interactions are a lot about are really about power and not necessarily about, you know, strength or it's anger and power. You know, that's that's why, you know, women can be aggressors. Men can be aggressors, you know, and it really crosses the line. It's really when people get emotional and they get involved in their relationships.

These are the men.

Oh, absolutely. So let's talk a little bit about.

Ok, so something bad happened after a Christmas party or a New Year's Eve party or, you know, just after a movie or somebody sitting around having beer, maybe there was no alcohol.

Whenever it's transpired, what do I do now? How do I protect my assets? Do I need to file? You know, what do I do with the children? Do I leave the house? And what do you tell clients?

And in those situations, I mean, I think you get yourself to safety first. You get yourself and the kids to safety first. If you have to call the police, if it's if there's a violent episode taking place and you have to call the police, that's the time to do it. If you can leave the situation, get out of the situation. Take care of your personal safety first.

Absolutely. The other thing I tried to tell clients along with that is, look, we want neutral and independent third parties to verify because the toughest fight you'll ever have in a courtroom is he said she said or she said she said or he said he said what that situation is, it hits the two people who were in that encounter.

Guess what perspective is going to rule. And the judge had a very difficult decision to try to figure out who's lying and who's not and who's embellishing and who's not. So filing a report.

Getting an investigator out or a police officer to be able to go through those facts and document transpired. If you suffered injuries, you know, going get treatment, taking photographs of what transpired.

You know, these are going to be the other things that are really going. The other thing is something that's very important in Texas, because I'll talk up we'll talk about protective orders in just a minute. But a history or pattern of abuse.

That's that's very, very critical because normally, normally in a lot of abusive situations, whenever the police are finally called out or, you know, whenever somebody finally reports the abuse, it's normally not the first time it's happened. It's normally, you know, I think the average is at least a fifth time, at least in most instances. It's a lot longer than that. But what I would tell you is that getting that history or pattern is very, very critical because of a protective order is something that you can get put in place that will protect you, protect yourself, your family, your kids, whatever the case may be from someone who is who is potentially violent towards you. And you have to be able to show a history or a pattern of family violence in order to get that protective order. So that's where the documentation becomes critical.

Agreed.

There's a lot of confusion between clients that come in and they'll say, well, what's the difference between a restraining order or standing order and a protective order?

And so this is one of the things that I always try to tell clients that the real distinction is a temporary restraining order or a stimulas are usually prohibitive of of actions. Right. They keep people.

They tell them, hey, these are the rules that you must abide by protective orders, protect people in places. It protects you in your job. It protects you in your home. It protects the children in their school. And that's different than don't do this. So you don't really understanding and getting counsel, talking to an attorney who is licensed in your area, getting good advice of how to proceed.

It's really important because what you have to have or what I tell clients they need to have to be successful through those processes is a plan. You have to have facts. You have to know where everything is and a plan to be able to address concerns for you in the short term, because it may entail you leaving the house. If you've got the children and you were a victim of violence, you need to get them out to safety, because if you don't, what you've done is potentially open yourself up to CPS investigation where neither one of you may end up with those children. Most children may be placed with family or foster care to to protect them in that situation.

That's a huge deal that can come up. You've got it. You've got to protect yourself and the kids first. And getting the help you need is critical. There's and then there's other. And keep in mind, there's tons of organizations, there's shelters, there's all kinds of people and organizations that can help victims of domestic violence. So, you know, if it's that bad, if the situation has gone to that point, get yourself to safety and get and get the help that you need is valuable. There's there's plenty of valuable resources out there that can help people.

Absolutely. And to be clear, we say family violence. It doesn't just move between spouses or between the older parties. It can be, you know, sometimes unfortunately, it is a spouse against the child or dating violence or dating violence.

Exactly. And protective orders or, you know, emergency protective orders with your obviously criminal implications, depending on if you file a criminal complaint.

But these are all things that are measures that you're going to need. Good, solid legal advice can move forward on.

The other thing I would tell you is that a lot of times, you know, a lot of times domestic violence escalates. It starts out small and then it gets more and more and more and more. And then you see a lot of these. You know, I don't want to scare anybody, but you see a lot of these murder suicides and different things that happen. A lot of times that starts out with family violence and it's a hit here or a slap there. And it just escalates and escalates and escalates over a period of months or a period of years. And ultimately, somebody ends up dead. And that's that's obviously what we're trying to prevent.

Absolutely. I mean, that's the tragedy that, you know, that comes from really the fact the family law, that worst case scenarios. But, you know, in that, Brian, I think it's really important to tell our listeners and potential clients or individuals who are looking for kind of good direction is that, you know, first and foremost, you have to be in a place and say you have to be in a place of safety.

And in that, when I say a plan, it really entails like understanding your financial situation and having a place to go, because a lot of things that inhibit people from responding to that type about poverty is they've already you know, a lot of times it's individuals who are very controlling.

Yeah. Right.

You've gotten into a relationship. They're controlling the finances, controlling the children are controlling every aspect of your life. And so when you look at it, you're like, I don't have the means or the mechanisms available to take the children or myself to safety, because everything else is really kind of locked down.

I mean, that's kept them off. You know, that's where a church or a shelter or are different, you know, as victims advocacy groups could come in and help. That's, you know, don't feel like it be based on a lack of resources that you can't get the help that you need because it is out there.

Absolutely. And if you don't.

What I want to encourage people to understand is if you don't act, you really set yourself up potentially in a courtroom to lose because it's very complicated to get in. And the other side has a good lawyer. And they come in and they say, well, you know, the first thing they're going to say is, oh, it's happened so many times. But you never filed a police report. You never tried to protect the children. You never took them out of this danger zone. But now you're just going to use it, you know, for your own purposes. Really did just try to get an advantage. And those are all false claims when they may not be.

So, you know, it really just becomes that's where the nomination, that's where the documentation is key. And then another distinctive difference and I'm not sure if you mentioned this before about another distinctive difference between a protective order and or shredding order is a violation of a protective order carries with it a felony.

So if a perpetrator of violence is there's a protective order issued and that person violates and whether that's contact or whether that's calling on the phone or whether they're showing up at your house or whatever the case may be, if you have a protective order and that person violates the protective of the specific provisions of the protective order, that becomes a felony charge, which carries with it potential prison implications. So that's why they're there.

They take that they take that very, very seriously. And it's something that it's it's one of those measures that if you need the protection, get the protection.

Absolutely.

But on the flip side of that, what I want to encourage individuals who are out there scheming and thinking, oh, perfect. They have the perfect setup in which to maybe lie, get an advantage, try to get ahead. That is a nuclear weapon that will absolutely self detonate in your face if you go in with the wrong intentions. It's the one thing that will turn a court against you and has absolute civil penalties and potential criminal stampedes.

Right. There are going penalties for false allegations of family violence. So don't don't look at as an arrow in the quiver that you can fire in a custody case. That's not that's not the way that this is supposed to work. And you're absolutely 100 percent right. It's the bomb that will blow up in your face.

Absolutely. And, you know, I mean, judges take it extremely seriously. You know, judges are always going to air on the side of caution. So if it's that you need some immediate assistance and you're like the church, you know, the organization that was out there, domestic violence or organization, they got me to a certain point. But now what's next? You know, any family, I need resources and you can get emergency temporary orders to get in front of a court to get you that type of relief or access so that you can recover information, personal property, financial resources to be able to the records.

Let's OK, let's talk about the the other side of this. Let's say you've been you've been had a protective order slapped on you. Let's say you didn't do anything. Let's say you've had a protective order slapped on you. What what do you do with that point?

Are you. Absolutely. Do not sit on your hands. The worst thing that you can do is not defend yourself in that situation, need to hire counsel and you need to get in there and address those and prove that those assertions are allegations are false. So you want to start gathering information. You've got to gather up the things that are going to show or demonstrate to the court and to other individuals that those accusations, those claims are false and then get into court with counsel.

And keep in mind that initially, usually when a protective order is issued, there's a temporary ex-party, a protective order. This issue that's only in place for usually that man at maximum about 20 days.

So you would have to have a court hearing within 20 days so that that period of time is your time to get your case together, you know, get your evidence together and stuff that you can use to refute these allegations, because as we've talked about before, they have long and lasting impacts.

And a protective order, a final protective order can be entered before a trial is even before the divorce drug trial even occurs. So, absolutely.

So you could you could win that whole game when that entire divorce proceeding on that one hearing that happens well in advance. And on that, the implications of a protective order so that everybody knows they can last up to two years. And even at the expiration of the two year period, you can get them extended. So you no doubt think about that. That's that limits you your ability. If you're a police officer or federal agent, you have a requirement to carry a firearm. This could absolutely affect your employment. You know, it could affect where you live. Many places, many apartments, condos do not allow people who've been convicted of family violence or have a protective order issued against them to be able to maintain residences in those areas. School district previdi. So it's very long lasting implications from such defenders.

Texas, we have concealed carry permits here. You're not going to be able to have a concealed carry permit hunting license. You're not going to probably be able to get a hunting license, anything dealing with a firearm. It's going to have a lasting impact on that.

Not only that, but like sometimes people will even go in and you can get licenses suspended over that.

So, you know, just, you know, your clearance, if you have a security clearance in the military, you know, you can get your beat. You know, you can get privileges suspended. You can get demotions in rank.

I mean, there's so many things that can happen from those types of encounters. So you just want to make sure, one, avoid them at all costs. It's advice number one. Right. Get out. Take the high road. Go cool off. Stay somewhere else. Let everybody simmer down. But if you are ever in that situation and make sure that once you document everything the way it happened, when it happened, you know, write down some journal notes, take a note on your phone, do a voice memo, take some photographs to show, hey, look, she didn't have any scratches or hey, look, he didn't have a bruise on his face where he said I punched him in the face.

You know, I'm saying like these may record the altercation. If if if if it comes down to it, everybody's everybody's smartphone these days is a recording device. So, you know, if you need to record the altercation, record the altercation, but be very, very careful.

And one thing I would tell you is that if you ever are slapped with a protective order and one is served on you, you follow that protective order to the letter, always air on the side of caution because you don't want to add to add to an already difficult situation with some kind of potential criminal charge. Because if they say they're going to say you violated a protective order, so make sure you follow that to the letter.

Yeah. And I'll give you a great example of that, Brian, as a closing thought, I will tell you, I had a case where an individual we now got an emergency protective order against her spouse and knew she had a huge advantage, but knew that she was very likely to lose it.

Temporary hearing that was going to come, whether to whether to decide whether the court was to issue that as a permanent protective order in that interim time, what she did was she contacted her spouse soon to be ex and said, hey, you know what, I'm so sorry. Let's settle things down. Let's meet over a cup of coffee. Don't worry. You be in a public place.

And you did it. You know what he did? He violated that protective order. And you know what she did? She called the cops. And you know where he ended up in jail.

So there's plenty of horror stories out there.

Yeah. You know, you don't want to look at the other person across from you and say that they would ever do something like that. You just have to know that by the time it gets to the seriousness of somebody filing those types of papers against you, you have to know what's in that order. And to your point, I have a by it 100 percent.

I have a friend of mine does criminal work and he was involved in a very, very contentious case. And a gentleman was locked up for a family violence dispute up, protect him. He was slapped on him. I guess he made bail and he he was let out. And I guess the lady sweet talked him a little bit or whatever happened happened. They were they were in communication. And he showed back up at her at her apartment. And guess what? She calls the police. He gets arrested for violating the protective order. So now he's dealing with not only is he dealing with the underlying family violence charges, is dealing with a violation of a protective order, a charge as well. And, you know, of course, there's the the the ex I mean, if she was the spouse or the girlfriend was saying, I don't I didn't ask him to come over here, I don't know what you're talking about. So you have to be very, very careful. These things are highly emotional and there's a lot of emotions that go along with it. But you have to keep your brain on. If there's a situation like this that comes up. Yeah, absolutely, without a doubt. Great advice.

I know this is a hot button topic. Hopefully nobody ever encounters it, but obviously it does happen more frequently than we'd like to see.

And like I said, I mean, I'm not saying that that every allegation of family violence is false. There are some instances where there's false allegations of family violence. There are some situations where it's absolutely warranted. And there absolutely is family violence. Because because like you talked about earlier, Sam, this is the most of the time violence is a power play in a relationship and it's dealing with power as opposed to, you know, the. The physical injury that's caused. And. But if you are in a situation like that, it's best, you know, you're not going to get in trouble for reporting the truth.

So if you're ever in a situation where violence has occurred and you need to get out of that situation, make sure you or your safety is paramount and make sure you get out of that situation and do what you have to do. You're not going to be accused of false allegations of family abuse. If something really happened. They're going to air on the side of caution. So you need to. But but at the same time, if you are accused of something and you're absolutely certain you didn't do anything, you need to. You need to protect yourself as well. This is a very, very hot button issue. And, you know, you need good, good counsel and you need to have a good organized case and moving forward and defending yourself or prosecuting it either way.

We're gonna have a lawyer, sir. So if you like what you're hearing on the top Texas lawyers podcast, go on to i-Tunes or whatever device you are listening on. You if there's any topics you'd like to hear. Please. Please let us know. Please leave us some comments. If in, we'd be happy to talk about them. We're gonna be bringing you a lot more shows this year. Do you know to tease future episodes, we're gonna we're gonna be talking about a lot of other different topics. We're gonna branch out into real estate. We're gonna branch out and do some criminal law DWI. We're gonna be talking about a lot of stuff. So this is you know, this is our first full year of doing this. So we're excited about what's going to happen. So if you like what you hear, leave us to review it.

Let us know what you think. Absolutely.

And so I wish you the best, Sam. And we will talk next time. I thank you for your time and thank you for the valuable information.

Of course, any time. BROWN Thank you, sir. Take care.

Thank you for listening. And we hope you enjoyed the top Texas Lawyers podcast. If you'd like to consultation with either Brian or Sam, please call 1 8 8 8 9 8 1 7 5 0 9. Or visit us on the web at a_s t.x. Legal dot com. Once again, that's A-s t.x, LPGA Yelp.com. Thank you very much.

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