What Are Protective and No Contact Orders?
Interviewer: Can you explain what a no contact order means?
Gary Churak: A no contact order is an order by the court, and it could be in relationship to a bond or can be a relationship to probation. You cannot have any contact with that particular person and that means absolutely no contact; no phone, no texting, no in person contacts.
Protective Orders Are Frequently Imposed during a Family or Domestic Violence Case
Where it is frequently imposed is you’ll have an allegation of family violence and it coincidently pops up in a family law matter and a dispute for custody or paternity or something and all of the sudden there’s a protective order against you. The order stipulates that you can’t be around the mother and you can’t be around the child for 2 years.
It Is Vital to Retain an Attorney to Address Any Protective Order That Is Imposed
So the end result is that you can’t see your child for 2 years by legal maneuvering on a protective order because you didn’t do anything about it. Now if you’re ever served with a protective order, it’s serious and you need to hire an attorney immediately, not only for the assault case, but for the protective order.
A lot of times the protective order will show up before the assault will even show up. It’s imperative that you have an attorney at all stages of the case, a protective order and a criminal representation.
A Protective Order Prohibits Certain Interactions; a No Contact Order Bars All Types of Contact
Interviewer: Are no-contact orders and protective orders the same thing, essentially?
Gary Churak: No. A protective order is a court order that basically says that you can’t do these certain things to the individual and most of the time it’s stay away from them. No contact means basically you cannot have any contact with that person. You can’t talk to the person. You can’t speak to the person. You can’t have any physical contact with them.
A protective order sometimes will keep you far away so you can’t even go on the premises or go up to the school where the child is located. It has a more broad scope.A no-contact order is usually in order in place dealing with either bonds or probation.
Protective orders can be connected to domestic violence cases but they don’t need to be and it’s basically under the family code where that comes in.
Interviewer: What about restraining orders?
Gary Churak: Restraining order is the same thing, same principal.
What Should You Do If You Are Contacted by the Party Protected by the No Contact Order?
Interviewer: What if I’m the accused and my spouse attempts to contact me or text me, should I contact them back?
Gary Churak: No. It happens all the time. It happens all the time, the old, “I need to talk to you. I want to talk to you.” Many times I’ve had clients been set up by their ex-girlfriends and ex-wives by that very nature with no-contact orders and the thing about it they’ve got proof now.
They’ve got the texts, which is evidence that you’ve been contacted.
Interviewer: Do you think the victim may purposely do that to try to get more dirt on them or something and try to get them more in trouble?
Gary Churak: Well, you have 2 types of people. You have the individual person, who is what is known as the battered-spouse syndrome that says, “I’m sorry this happened to you. I want to get back together with you. I need you.” Then you have the ones that intentionally do it because they’re trying to set you up.
Battered Spouse Syndrome and Recanting Domestic Violence Accusations
Interviewer: Can you elaborate more about that battered-spouse syndrome?
Gary Churak: This is a person that was abused but they continuously reconcile with the abuser.
Interviewer: What happens if they ever try to do that during the trial?
Gary Churak: I’ve seen it occur. The victim will go to the stand and they try to recant or change a story during the actual trial. The DA is, of course, going to threaten them with perjury and in a number of cases there is no “written statement” by the complaining witness.
Complaining Witnesses Can Be Charged with Providing False Information When They Recant Accusations but That Is Rarely Enforced
I witnessed an occasion where the person says, “I never said that. The police officer wrote that. I never told the officer that,” and then they really can’t do anything about that. If you do provide a written statement and you say this happened then try to recant it, they could technically charge you with giving false information to a police officer but they never do.
Witnesses That Want to Recant Must File an Affidavit of Non-Prosecution; It Is Advisable to Consult an Attorney during This Process
In misdemeanor situations, if you file an affidavit of non-prosecution and later tell the DA you don’t want to prosecute and you don’t show up in court, 9 times out of 10 they’ll drop the case. You’ve got to be very careful with that because you also can fall into the trap of basically witness tampering. This charge can be a felony. You have to be very careful on how that’s done and there are ways to do it and handle it correctly.
That’s one of the things attorneys know how to do because that’s the first thing you hear. A client comes in and says, “My wife wants to drop the charges. She told the DA that,” and I say, “Well that’s great except it’s the State of Texas that’s prosecuting you.
What your wife can do is she can file what’s called an affidavit of non-prosecution that indicateshe or she does not want to testify against you. The party will need to contact me and let me know that this is what she wants to do.
I’m not contacting her because we’re not witness tampering or making any statements to that effect, the person withdrawing the complaint must be proactive. I prefer to mail it to her or email it to her and she can sign it, take it to a notary, get it notarized, and get it back to me on her own free will and volition.
Is It Ever Advisable to Plead Guilty and Expect to Receive Mercy from the Court?
Interviewer: Do you ever have cases where the accused says, “Yes, it happened and I’m sorry and I just want to throw myself at the mercy of the court.”
Gary Churak: Oh yes, all the time.But what happens is the accused discusses this with the prosecution, who may claim, “Oh don’t worry about it. Nothing’s going to happen to you. You are not going to have a conviction. I’ll give you the deferred adjudication probation. This will entail doing some community service and some anger-management classes and parenting classes.”
They don’t bother telling you that it’s going to stay on your record, that the anger-management and/or parenting classes can cost thousands of dollars so there are a lot of factors that come into play with these types of cases.