Woman gets a protective order against Man. Man subsequently goes to prison for a few years. Meanwhile, Woman delivers a child, of which Man is the father. Man's rights are terminated. As his release date approaches, he makes statements causing Woman to be fearful for child's safety when his release happens. Assuming that these statements would support a protective order for the child, does the fact of termination of parental rights take away standing to pursue a protective order (i.e., Man is no longer a "family member" as defined in the Family Code)?
Posts: 365 | Location: Plainview, Hale County | Registered: January 11, 2005
Regardless of whether Man is a family member, if his statements constitute the offense of stalking under Penal Code section 42.072, you can apply for a protective order under article 7A.01 of the Code of Criminal Procedure.
I tend to think that termination does not foreclose "family" status under Title 4 of the Family Code. Section 71.003 of the Family Code defines "family" to include "individuals related by consanguinity ... as determined under Section 573.022 ... Government Code." Government Code section 573.022(a)(1) provides that two individuals are related by consanguinity if one is a descendent of the other. It does not except or exclude relatives whose parental rights have been terminated by court order. Moreover, Family Code section 161.206(b), in describing the effect of a termination order, indicates that the order divests the parent and the child of all legal rights and duties with respect to one another, but reserves the child's right to inherit from the terminated parent unless the court's order states otherwise. In other words, a termination order cuts off the legal relationship, not the biological one. Since consanguinity is keyed to the latter relationship, I think there's a solid argument that section 71.003 does not exclude a parent whose parental rights have been terminated.
Policy consideration supports this view. Your case is a prime example. The notion that a parent who wants to protect his or her child would have to await threats or injurious action by the other parent so a protective order could be obtained before severing the legal relationship between the child and the menacing parent is counterintuitive and absurd. At the same time, if termination is a facial disentitlement to a protective order for the child , that signals a legislative choice to give bad parents a free pass to threaten their children. The legislature certainly isn't immune from making bad choices, but that would be a monumentally bad one.
Of course, there may be case law directly addressing the question. I just haven't looked.
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001
I think that it's proper for Woman to apply for a protective order on behalf of Child against Man. Look at FC 82.002(a): "with regard to family violence under Section 41.004(1) or (2), an adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the APPLICANT'S family or household" (my emphasis added).
I think that a logical reading of that is that it doesn't matter what Child's relationship to Man is. What matters is that the applicant (Woman) has a family relationship, and that Child has a family/household relationship to Woman. Even if Child was born from another father, Child is a member of Woman's family/household. Woman can then file a protective order because Man has committed family violence against her.