Can I force my alcoholic husband out of our marital home if he does not get help?
Full Question:
I am married and have a 15 yr old daughter. My husband is an alcoholic. I want him to find someplace else to stay until he gets some help. He says he won't leave. What legal options do I have to make him leave? He is gone for the weekend, and I thought I might be able to find out something before he returns?
05/18/2007 |
Category: Marriage |
State: Texas |
#5193
Answer:
If your husband is not willing to seek help on his own, you may be able to obtain court-ordered treatment for him. Please see the following relevant Texas statutes and the information at http://www.alcoholics-anonymous.org/US_CtrOffice/tx.html for help with this situation:
§ 462.062 HEALTH & SAFETY. Application for Court-Ordered Treatment
(a) A county or district attorney or other adult may file a
sworn written application for court-ordered treatment of another
person. Only the district or county attorney may file an
application that is not accompanied by a certificate of medical
examination for chemical dependency.
(b) The application must be filed with the county clerk in the
county in which the proposed patient:
(1) resides;
(2) is found; or
(3) is receiving treatment services by court order or under
Section 462.041.
(c) If the application is not filed in the county in which the
proposed patient resides, the court may, on request of the
proposed patient or the proposed patient's attorney and if good
cause is shown, transfer the application to that county.
(d) The application must be styled using the initials of the
proposed patient and not the proposed patient's full name.
(e) The application must contain the following information
according to the applicant's information and belief:
(1) the proposed patient's name and address, including the
county in which the proposed patient resides, if known;
(2) a statement that the proposed patient is a chemically
dependent person who:
(A) is likely to cause serious harm to himself or others;
or
(B) will continue to suffer abnormal mental, emotional, or
physical distress, will continue to deteriorate in ability to
function independently if not treated, and is unable to make a
rational and informed choice as to whether to submit to
treatment; and
(3) a statement that the proposed patient is not charged with
a criminal offense that involves an act, attempt, or threat of
serious bodily injury to another person.
(f) Subsection (e)(3) does not apply if the proposed patient is
a juvenile alleged to be a child engaged in delinquent conduct or
conduct indicating a need for supervision as defined by Section
51.03, Family Code.
§ 462.063 HEALTH & SAFETY. Prehearing Procedure
(a) When the application is filed, the court shall set a date
for a hearing on the merits of the application to be held within
14 days after the date on which the application is filed. The
hearing may not be held during the first three days after the
application is filed if the proposed patient or the proposed
patient's attorney objects. The court may grant one or more
continuances of the hearing on motion by a party and for good
cause shown or on agreement of the parties. However, the hearing
shall be held not later than the 30th day after the date on which
the original application is filed.
(b) Immediately after the date for the hearing is set, the
clerk shall give written notice of the hearing and a copy of the
application to the proposed patient and the proposed patient's
attorney in the manner the court directs.
(c) The court shall appoint an attorney to represent the
proposed patient if the proposed patient does not retain an
attorney of the proposed patient's choice.
(d) The court shall appoint an attorney for a proposed patient
who is a minor, regardless of the ability of the proposed patient
or the proposed patient's family to afford an attorney.
(e) The court shall allow a court-appointed attorney a
reasonable fee for services. The fee shall be collected as costs
of the court.
§ 462.064 HEALTH & SAFETY. Certificate of Medical Examination for Chemical
Dependency
(a) A hearing on court-ordered treatment may not be held unless
there are on file with the court at least two certificates of
medical examination for chemical dependency completed by
different physicians each of whom has examined the proposed
patient not earlier than the 30th day before the date the final
hearing is held.
(b) If the certificates are not filed with the application, the
court may appoint the necessary physicians to examine the
proposed patient and file the certificates. The court may order
the proposed patient to submit to the examinations and may issue
a warrant authorizing a peace officer to take the proposed
patient into custody for the examinations.
(c) A certificate must be dated and signed by the examining
physician. The certificate must include:
(1) the name and address of the examining physician;
(2) the name and address of the proposed patient;
(3) the date and place of the examination;
(4) the period, if any, during which the proposed patient has
been under the care of the examining physician;
(5) an accurate description of the treatment, if any, given
by or administered under the direction of the examining
physician; and
(6) the examining physician's opinions whether the proposed
patient is a chemically dependent person and:
(A) is likely to cause serious harm to himself;
(B) is likely to cause serious harm to others; or
(C) will continue to suffer abnormal mental, emotional, or
physical distress and to deteriorate in ability to function
independently if not treated and is unable to make a rational and
informed choice as to whether or not to submit to treatment.
(d) The certificate must include the detailed reason for each
of the examining physician's opinions under this section.
(e) If the certificates required under this section are not on
file at the time set for the hearing on the application, the
judge shall dismiss the application and order the immediate
release of the proposed patient if that person is not at liberty.
If extremely hazardous weather conditions exist or a disaster
occurs, the presiding judge or magistrate may by written order
made each day extend the period during which the two certificates
of medical examination for chemical dependency may be filed, and
the person may be detained until 4 p.m. on the first succeeding
business day. The written order must declare that an emergency
exists because of the weather or the occurrence of a disaster.
§ 462.065 HEALTH & SAFETY. Order of Protective Custody
(a) A motion for an order of protective custody may be filed
only in the court in which an application for court-ordered
treatment is pending. The motion may be filed by the county or
district attorney or on the court's own motion.
(b) The motion must state that:
(1) the judge or county or district attorney has reason to
believe and does believe that the proposed patient meets the
criteria authorizing the court to order protective custody; and
(2) the belief is derived from:
(A) the representations of a credible person;
(B) the proposed patient's conduct; or
(C) the circumstances under which the proposed patient is
found.
(c) The motion must be accompanied by a certificate of medical
examination for chemical dependency prepared by a physician who
has examined the proposed patient not earlier than the fifth day
before the date the motion is filed.
(d) The judge of the court in which the application is pending
may designate a magistrate to issue protective custody orders in
the judge's absence.
(e) The judge or designated magistrate may issue a protective
custody order if the judge or magistrate determines:
(1) that a physician has stated his opinion and the detailed
basis for his opinion that the proposed patient is a chemically
dependent person; and
(2) the proposed patient presents a substantial risk of
serious harm to himself or others if not immediately restrained
pending the hearing.
(f) The determination that the proposed patient presents a
substantial risk of serious harm may be demonstrated by the
proposed patient's behavior or by evidence that the proposed
patient cannot remain at liberty. The judge or magistrate may
make a determination that the proposed patient meets the criteria
prescribed by this subsection from the application and
certificate alone if the judge or magistrate determines that the
conclusions of the applicant and certifying physician are
adequately supported by the information provided. The judge or
magistrate may take additional evidence if a fair determination
of the matter cannot be made from consideration of the
application and certificate only.
(g) The judge or magistrate may issue a protective custody
order for a proposed patient who is charged with a criminal
offense if the proposed patient meets the requirements of this
section and the administrator of the facility designated to
detain the proposed patient agrees to the detention.
(h) A protective custody order shall direct a peace officer or
other designated person to take the proposed patient into
protective custody and transport the proposed patient immediately
to a treatment facility or other suitable place for detention.
The proposed patient shall be detained in the facility until a
hearing is held under Section 462.066.
§ 462.066 HEALTH & SAFETY. Probable Cause Hearing and Detention
(a) The court shall set a hearing to determine if there is
probable cause to believe that a proposed patient under a
protective custody order presents a substantial risk of serious
harm to himself or others if not restrained until the hearing on
the application. The hearing must be held not later than 72 hours
after the protective custody order is signed unless the proposed
patient waives the right to a hearing. If the period ends on a
Saturday, Sunday, or legal holiday, the hearing must be held on
the next day that is not a Saturday, Sunday, or legal holiday.
The judge or magistrate may postpone the hearing each day for an
additional 24 hours if the judge or magistrate declares that an
extreme emergency exists because of extremely hazardous weather
conditions or on the occurrence of a disaster that threatens the
safety of the proposed patient or another essential party to the
hearing.
(b) The hearing shall be held before a magistrate or, at the
discretion of the presiding judge, before a master appointed by
the presiding judge. The master is entitled to reasonable
compensation.
(c) The proposed patient and the proposed patient's attorney
are entitled to an opportunity at the hearing to appear and
present evidence on any allegation or statement in the
certificate of medical examination for chemical dependency. The
magistrate or master may consider any evidence. The state may
prove its case on the certificate.
(d) The magistrate or master shall order the release of a
person under a protective custody order if the magistrate or
master determines after the hearing that no probable cause exists
to believe that the proposed patient presents a substantial risk
of serious harm to himself or others.
(e) The magistrate shall order that a proposed patient be
detained until the hearing on the court-ordered treatment or
until the administrator of the facility determines that the
proposed patient no longer meets the criteria for detention under
this section if the magistrate or master determines that probable
cause does exist to believe that the proposed patient presents a
substantial risk of serious harm to himself or others to the
extent that the proposed patient cannot be at liberty pending the
hearing on court-ordered treatment.
(f) The magistrate or master shall arrange for a proposed
patient detained under Subsection (e) to be returned to the
treatment facility or other suitable place, along with a copy of
the certificate of medical examination for chemical dependency,
any affidavits or other material submitted as evidence in the
hearing, and the notification prepared as prescribed by
Subsection (g). A copy of the notification of probable cause
hearing and the supporting evidence shall be filed with the court
that entered the original order of protective custody.
(g) The notification of probable cause hearing shall read as
follows:
(Style of Case)NOTIFICATION OF PROBABLE CAUSE HEARING
On this the __________ day of __________, 19__, the undersigned
hearing officer heard evidence concerning the need for protective
custody of __________ (hereinafter referred to as proposed
patient). The proposed patient was given the opportunity to
challenge the allegations that (s)he presents a substantial risk
of serious harm to self or others.The proposed patient and the proposed patient's attorney ______
(attorney)
have been given written notice that the proposed patient was
placed under an order of protective custody and the reasons for
such order on __________________________________________________.
(date of notice)I have examined the certificate of medical examination for
chemical dependency and __________________________________. Based
(other evidence considered)
on this evidence, I find that there is probable cause to believe
that the proposed patient presents a substantial risk of serious
harm to self (yes ____ or no ____) or others (yes ____ or no
____) such that (s)he cannot be at liberty pending final hearing
because _________________________________________________________
(reasons for finding; type of risk found)
§ 462.067 HEALTH & SAFETY. Hearing on Application for
Court-Ordered Treatment
(a) A hearing on court-ordered treatment must be before a jury unless
the proposed patient and the proposed patient's attorney waive the right
to a jury. The waiver may be filed at any time after the proposed patient
is served with the application and receives notice of the hearing. The
waiver must be in writing, under oath, and signed and sworn to by the
proposed patient and the proposed patient's attorney.
(b) The proposed patient is entitled to a hearing and to be present at
the hearing, but the proposed patient or the proposed patient's attorney
may waive either right.
(c) A court hearing may be held at any suitable location in the
county. On the request of the proposed patient or the proposed patient's
attorney, the hearing shall be held in the county courthouse.
(d) The Texas Rules of Civil Procedure and Texas Rules of Evidence
apply to a hearing unless the rules are inconsistent with this chapter.
The hearing is on the record, and the state must prove each issue by
clear and convincing evidence.
(e) In addition to the rights prescribed by this chapter, the proposed
patient is entitled to:
(1) present evidence on the proposed patient's own behalf;
(2) cross-examine witnesses who testify on behalf of the applicant;
(3) view and copy all petitions and reports in the court file of the
cause; and
(4) elect to have the hearing open or closed to the public.
(f) The proposed patient or the proposed patient's attorney, by a
written document filed with the court, may waive the right to
cross-examine witnesses, and, if that right is waived, the court may
admit as evidence the certificates of medical examination for chemical
dependency. The certificates admitted under this subsection constitute
competent medical or psychiatric testimony, and the court may make its
findings solely from the certificates. If the proposed patient or the
proposed patient's attorney does not waive the right to cross-examine
witnesses, the court shall hear testimony. The testimony must include
competent medical or psychiatric testimony.
§ 462.068 HEALTH & SAFETY. Release After Hearing
(a) The court shall enter an order denying an application for
court-ordered treatment if after a hearing the court or jury
fails to find, from clear and convincing evidence, that the
proposed patient is a chemically dependent person and meets the
criteria for court-ordered treatment.
(b) If the court denies the application, the court shall order
the discharge of a proposed patient who is not at liberty.
§ 462.069 HEALTH & SAFETY. Court Order and Place of Treatment
(a) The court shall commit the proposed patient to a treatment
facility approved by the commission to accept court commitments
for not more than 90 days if:
(1) the proposed patient admits the allegations of the
application; or
(2) at the hearing on the merits, the court or jury finds
that the material allegations in the application have been proved
by clear and convincing evidence.
(b) The judge may, on request by the proposed patient, enter an
order requiring the proposed patient to participate in a licensed
outpatient treatment facility or services provided by a private
licensed physician, psychologist, social worker, or professional
counselor if the judge finds that the participation is in the
proposed patient's best interest considering the proposed
patient's impairment.
If you feel that you and/or your daughter are in danger of family violence, please see the relevant Texas statutes below:
§ 71.004 FAM. Family Violence
"Family violence" means:
(1) an act by a member of a family or household against another
member of the family or household that is intended to result in
physical harm, bodily injury, assault, or sexual assault or that is a
threat that reasonably places the member in fear of imminent physical
harm, bodily injury, assault, or sexual assault, but does not include
defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E),
and (G) by a member of a family or household toward a child of the
family or household; or
(3) dating violence, as that term is defined by Section 71.0021
§ 81.001 FAM. Entitlement to Protective Order
A court shall render a protective order as provided by Section
85.001(b) if the court finds that family violence has occurred and
is likely to occur in the future.
§ 81.002 FAM. No Fee for Applicant
An applicant for a protective order or an attorney representing an
applicant may not be assessed a fee, cost, charge, or expense by a
district or county clerk of the court or a sheriff, constable, or other
public official or employee in connection with the filing, serving, or
entering of a protective order or for any other service described by this
subsection, including:
(1) a fee to dismiss, modify, or withdraw a protective order;
(2) a fee for certifying copies;
(3) a fee for comparing copies to originals;
(4) a court reporter fee;
(5) a judicial fund fee;
(6) a fee for any other service related to a protective order; or
(7) a fee to transfer a protective order.
§ 81.003 FAM. Fees and Costs Paid by Party Found to Have Committed
Family Violence
(a) Except on a showing of good cause or of the indigence of a party
found to have committed family violence, the court shall require in a
protective order that the party against whom the order is rendered pay the
$16 protective order fee, the standard fees charged by the clerk of the
court in a general civil proceeding for the cost of serving the order,
the costs of court, and all other fees, charges, or expenses incurred in
connection with the protective order.
(b) The court may order a party against whom an agreed protective order
is rendered under Section 85.005 to pay the fees required in
Subsection (a).
§ 82.001 FAM. Application
A proceeding under this subtitle is begun by filing "An Application for
a Protective Order" with the clerk of the court.
§ 82.002 FAM. Who May File Application
(a) With regard to family violence under Section 71.004(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
(b) With regard to family violence under Section 71.004(3), an
application for a protective order to protect the applicant may be
filed by an adult member of the dating relationship.
(c) Any adult may apply for a protective order to protect a child
from family violence.
(d) In addition, an application may be filed for the protection of any
person alleged to be a victim of family violence by:
(1) a prosecuting attorney; or
(2) the Department of Protective and Regulatory Services.
(e) The person alleged to be the victim of family violence in an
application filed under Subsection (c) or (d) is considered to be the
applicant for a protective order under this subtitle.
§ 82.004 FAM. Contents of Application
An application must state:
(1) the name and county of residence of each applicant;
(2) the name and county of residence of each individual alleged to
have committed family violence;
(3) the relationships between the applicants and the individual
alleged to have committed family violence; and
(4) a request for one or more protective orders.
§ 82.009 FAM. Application for Temporary ex Parte Order
An application that requests the issuance of a temporary ex parte order
under Chapter 83 must:
(1) contain a detailed description of the facts and circumstances
concerning the alleged family violence and the need for the immediate
protective order; and
(2) be signed by each applicant under an oath that the facts and
circumstances contained in the application are true to the best
knowledge and belief of each applicant.
§ 82.041 FAM. Contents of Notice of Application
(a) A notice of an application for a protective order must:
(1) be styled "The State of Texas";
(2) be signed by the clerk of the court under the court's seal;
(3) contain the name and location of the court;
(4) show the date the application was filed;
(5) show the date notice of the application for a protective order
was issued;
(6) show the date, time, and place of the hearing;
(7) show the file number;
(8) show the name of each applicant and each person alleged to have
committed family violence;
(9) be directed to each person alleged to have committed family
violence;
(10) show the name and address of the attorney for the applicant or
the mailing address of the applicant, if the applicant is not
represented by an attorney; and
(11) contain the address of the clerk of the court.
(b) The notice of an application for a protective order must state: "An
application for a protective order has been filed in the court stated in
this notice alleging that you have committed family violence. You may
employ an attorney to defend you against this allegation. You or your
attorney may, but are not required to, file a written answer to the
application. Any answer must be filed before the hearing on the
application. If you receive this notice within 48 hours before the time
set for the hearing, you may request the court to reschedule the hearing
not later than 14 days after the date set for the hearing. If you do not
attend the hearing, a default judgment may be taken and a protective
order may be issued against you."
§ 82.042 FAM. Issuance of Notice of Application
(a) On the filing of an application, the clerk of the court shall issue
a notice of an application for a protective order and deliver the notice
as directed by the applicant.
(b) On request by the applicant, the clerk of the court shall issue a
separate or additional notice of an application for a protective order.
§ 82.043 FAM. Service of Notice of Application
(a) Each respondent to an application for a protective order is
entitled to service of notice of an application for a protective order.
(b) An applicant for a protective order shall furnish the clerk with a
sufficient number of copies of the application for service on each
respondent.
(c) Notice of an application for a protective order must be served in
the same manner as citation under the Texas Rules of Civil Procedure,
except that service by publication is not authorized.
(d) Service of notice of an application for a protective order is not
required before the issuance of a temporary ex parte order under
Chapter 83.
(e) The requirements of service of notice under this subchapter do not
apply if the application is filed as a motion in a suit for dissolution of
a marriage. Notice for the motion is given in the same manner as any
other motion in a suit for dissolution of a marriage.
§ 83.001 FAM. Requirements for Temporary ex Parte Order
(a) If the court finds from the information contained in an application
for a protective order that there is a clear and present danger of family
violence, the court, without further notice to the individual alleged to
have committed family violence and without a hearing, may enter a
temporary ex parte order for the protection of the applicant or any other
member of the family or household of the applicant.
(b) In a temporary ex parte order, the court may direct a respondent to
do or refrain from doing specified acts.
§ 83.002 FAM. Duration of Order; Extension
(a) A temporary ex parte order is valid for the period specified in the
order, not to exceed 20 days.
(b) On the request of an applicant or on the court's own motion, a
temporary ex parte order may be extended for additional 20-day periods.
§ 85.022 FAM. Requirements of Order Applying to Person Who Committed
Family Violence
(a) In a protective order, the court may order the person found to have
committed family violence to:
(1) complete a battering intervention and prevention program as
provided by Article 42.141, Code of Criminal Procedure,
and that meets the guidelines adopted by the community justice
assistance division of the Texas Department of Criminal Justice if a
program is available;
(2) counsel with a social worker, family service agency, physician,
psychologist, licensed therapist, or licensed professional counselor if
a program under Subdivision (1) is not available; or
(3) perform acts specified by the court that the court determines are
necessary or appropriate to prevent or reduce the likelihood of family
violence.
(b) In a protective order, the court may prohibit the person found to
have committed family violence from:
(1) committing family violence;
(2) communicating:
(A) directly with a person protected by an order or a member of
the family or household of a person protected by an order, in a
threatening or harassing manner;
(B) a threat through any person to a person protected by an order
or a member of the family or household of a person protected by an
order; and
(C) if the court finds good cause, in any manner with a person
protected by an order or a member of the family or household of a
person protected by an order, except through the party's attorney or
a person appointed by the court;
(3) going to or near the residence or place of employment or business
of a person protected by an order or a member of the family or
household of a person protected by an order;
(4) going to or near the residence, child-care facility, or school a
child protected under the order normally attends or in which the child
normally resides; and
(5) engaging in conduct directed specifically toward a person who is
a person protected by an order or a member of the family or household
of a person protected by an order, including following the person, that
is reasonably likely to harass, annoy, alarm, abuse, torment, or
embarrass the person.
(6) possessing a firearm, unless the person is a peace officer, as
defined by Section 1.07, Penal Code, actively engaged in
employment as a sworn, full-time paid employee of a state agency or
political subdivision.
(c) In an order under Subsection (b)(3) or (4), the court shall
specifically describe each prohibited location and the minimum distances
from the location, if any, that the party must maintain. This subsection
does not apply to an order in which Section 85.007 applies.
(d) In a protective order, the court may suspend a license to carry a
concealed handgun issued under Section 411.177, Government Code,
that is held by a person found to have committed family violence.
(e) In this section, "firearm" has the meaning assigned by Section
46.01, Penal Code.
§ 85.041 FAM. Delivery to Respondent
(a) A protective order rendered under this subtitle shall be:
(1) delivered to the respondent as provided by Rule 21a, Texas Rules
of Civil Procedure;
(2) served in the same manner as a writ of injunction; or
(3) served in open court at the close of the hearing as provided by
this section.
(b) The court shall serve an order in open court to a respondent who is
present at the hearing by giving to the respondent a copy of the order,
reduced to writing and signed by the judge or master. A certified copy of
the signed order shall be given to the applicant at the time the order is
given to the respondent. If the applicant is not in court at the
conclusion of the hearing, the clerk of the court shall mail a certified
copy of the order to the applicant not later than the third business day
after the date the hearing is concluded.
(c) If the order has not been reduced to writing, the court shall give
notice orally to a respondent who is present at the hearing of the part
of the order that contains prohibitions under Section 85.022 or any
other part of the order that contains provisions necessary to prevent
further family violence. The clerk of the court shall mail a copy of the
order to the respondent and a certified copy of the order to the
applicant not later than the third business day after the date the hearing
is concluded.
(d) If the respondent is not present at the hearing and the order has
been reduced to writing at the conclusion of the hearing, the clerk of
the court shall immediately provide a certified copy of the order to the
applicant and mail a copy of the order to the respondent not later than
the third business day after the date the hearing is concluded.
