Do protective orders really work?

I’m early for county court and my client and I watch the case before ours. It’s a protective order. A husband pleads, “Your honor, I just got served last week, the police threw me out of our house, my wife took all our money and hired an attorney who filed a divorce with a restraining order. I don’t have money now for an attorney and I miss my children.”

Nothing out of the ordinary here, and while the judge enters temporary orders against the distraught man, I check Facebook’s Texas Family Lawyers group to read my colleagues’ morning adventures.

Enacted by the Texas Legislature in 1979, protective orders have been hailed as a powerful deterrent to family violence — so much so that the penalties to perpetrators have steadily increased, along with the rights awarded to the victims. Yet I wonder, do they really work? How often are they abused to give one person an overwhelming advantage in divorce and custody cases? Approximately 85-95 percent of these orders are against men; are they always at fault?

Certainly protective orders have changed the culture of marital relations. As a prosecutor in the 1980s, I’d see husbands defiantly proclaim, “What happens in my home is my business!” “She’s my wife and this is between us — not you!”

I don’t hear that anymore, yet statistics show family violence is still slowly increasing in Texas. In 2015, the 158 women killed at the hands of their partners set a record — that was about 20 people murders than in most previous years. The 200,000 reported annual incidents were also incrementally higher. This might be explained by a larger population, more awareness or other factors. How should success be defined? Does the number of cases actually need to decline or is “leveling out” sufficient?

Actual violence is not required to obtain a protective order; the threat alone will legally suffice, along with the vague “likelihood of future violence.” The state almost always succeeds in obtaining these orders. I defended one where, in disgust, the dad threw a soiled diaper across the room. The mom was not hit, but as part of her divorce she also had the county file against him. I practically screamed... there was neither violence nor evidence of future violence. But the judge granted their order.

Noticing I was furious, he called a recess. “Steve, that was perhaps the best defense to an protective order I have seen, and I actually considered not granting it,” he said.

Therein lies the problem. Judges in Texas are elected, and not approving an order could ruin a political career if the victim was later maimed or murdered. On the other hand, granting one is politically expedient and can be justified by telling the perpetrator “Well, you do want to stay away from her... don’t you?”

Unfortunately, the punitive ramifications of being on the losing end of a protective order have become almost draconian. The Texas Family Code mandates that protective orders be detailed in a divorce petition, which affects the division of assets as well as custody of a couple’s children. The protective order hearing itself can determine conservatorship and visitation, even if no evidence is presented as to parenting skills. These orders will trump an existing order where witnesses, experts, home studies, and evidence were admitted, argued and carefully considered.

Travis County Attorney David Escamilla understands the unfair advantage caused when both the state and private attorney double-team someone. Any private attorney can file a protective order, but Escamilla will not use county resources and tax money if a private attorney is handling the divorce. El Paso and other jurisdictions should follow suit.

While protective orders feel like a good idea because they keep battling parties apart, they should be studied scientifically. Some statistics show that 50 percent of the serious violence happens after the parties are separated. Sam Houston State’s Criminal Justice Center, one of the best Criminology research institutions in the nation, should do a comprehensive examination.

After court was over, I returned to my office only to hear a new message. “Mr. Fischer, I just got served with a protective order. My hearing is next week. The police threw me out of our house. My wife emptied our bank account and she hired an attorney who filed divorce and restraining orders. I was only trying to get away from her, when...” Ugh.

I turn to Shasharoosticus: “One of us should write a column.” She stares me down with her hazel doggie eyes, “You do it... you’re the guy!”

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