Guns, Domestic Violence and Divorce: What Can Be Done May Surprise You

In Texas and across the U.S., nearly everyone has an opinion about gun control and our rights under the second amendment. Presidential candidates have weighed in on the campaign trail and President Obama announced he would be taking a series of new executive actions to help curb gun violence.

According to WhiteHouse.gov, “Congress has prohibited specific categories of people from buying guns—from convicted felons to users of illegal drugs to individuals convicted of misdemeanor crimes of domestic violence.”

But what does this mean for couples going through a divorce when the threat of domestic violence looms large?

Weapons Are Handled Differently in Criminal vs. Civil Courts

Federal law prohibits some categories of individuals from purchasing guns, and Texas criminal courts can bar persons from possessing firearms under certain circumstances. However, removing weapons from a party’s possession during a civil proceeding isn’t usually straight forward.

Dallas Family Law Attorney Alissa Castro explains why parties can’t be forced to surrender weapons in the Texas Family Court.
 “While law enforcement may seize weapons as evidence following the commission of a crime or in violation of a protective order, this isn’t the case in civil courts,” says Connatser Family Law Attorney Alissa Castro.

In other words, a Family Court Judge won’t be able to order your future ex-spouse to hand over his gun to the bailiff.

Divorcing Parties Must Mutually Agree to Secure Weapons

As Alissa explains, “When it comes to civil matters, as is the case with proceedings in the Texas Family Court, the best practice is for two divorcing parties to mutually decide for any weapons to be surrendered as a matter of agreement. This would include the couple also agreeing where the weapons will be secured, whether they be surrendered to a third party (a local gun range for example) or stored in a gun safe on the family property (with a new passcode).”

And don’t expect your divorce attorney to store guns for you either. “Due to a number of obvious concerns, most family law practices in Texas won’t store weapons for clients. They can, however, counsel you regarding your options and other safety precautions,” Alissa says.

Alissa shares a few safety tips for people dealing with domestic violence issues during divorce.

Protective Orders May Be Another Option in Texas

When a potentially violent spouse won’t agree to secure weapons with a third party or in another safe place, your Texas family law attorney can guide you regarding other safety precautions to take.

“If you fear that you and/or your children are in imminent danger and an incidence of domestic violence has occurred within the past 30 days, your divorce attorney can help you get an ex parte protective order – or emergency ex parte protective order. If the order is granted, your spouse would immediately be banned from possessing firearms and may also prohibited from entering the family home,” explains Alissa.

In both scenarios, you’re still dealing with the challenge of getting the spouse to agree to surrender his or her weapons that are in their possession. Plus, if the party is a peace officer or member of the military, he or she could be exempt, and therefore, NOT prohibited from possessing a firearm.

Your First Line of Defense Against a Violent Spouse: A Safety Plan

“If you’re dealing with domestic violence in your marriage – or any relationship – your family law attorney can help you put a safety plan in place. Know where potential weapons are stashed in your home, call police if tensions escalate and have a plan to get out when you need to,” Alissa advises.

Learn more about safety planning on the Genesis Women’s Shelter and Support website. If you live in the Dallas-Fort Worth area, you can also call Genesis’ 24-Hour Hotline at 214-946-4357.

Or, call the National Domestic Violence Hotline (NDVH) at 1-800-799-SAFE (7233), or TTY 1-800-787-3224 or visit the NDVH website at http://www.thehotline.org/ for additional guidance.

 

Photo Source: Bill & Vicki T