In Texas and across the U.S., people, businesses and organizations alike have an opinion about gun control and our rights under the second amendment. We rarely think of firearms being an issue in divorce and custody cases. While the laws become stricter on who can purchase and own guns we still must consider those already with guns and what that can potentially mean for family law. So, what does this mean for families going through a divorce when the potential threat of domestic violence weighs heavy?
Federal law prohibits some categories of individuals from purchasing guns, and Texas criminal courts can bar persons from possessing firearms under certain circumstances. However, weapons are handled quite differently in criminal law vs. civil law and family law and removing weapons from a party’s possession during a family proceeding isn’t usually such a straight forward issue. A family court Judge will not be able to order a party to hand over his or her gun to the bailiff or order that they sell the gun.
The way to go about it is for two divorcing parties to mutually decide for any weapons to be surrendered or secured at a particular place or a particular third party, a local gun range for example, stored in a gun safe or with a family member or friend. You shouldn’t expect your divorce attorney to store guns for you either. Some divorce attorney’s may barter work in exchange for guns/ammo and kill two birds with one stone but they most likely will not house your guns for a number of reasons.
To avoid the possibility of prosecution under federal law (18 U.S.C. §922), you should plan to remove all firearms and ammunition from your possession while your case is pending. You need not sell these items but may place them with a third party for safekeeping. The provisions about possession of these items described below apply unless the court makes a specific exception for your case, and they apply even if you have a concealed carry permit.
It is routine practice for courts to enter mutual temporary injunctions prohibiting conduct constituting threats or injury to the other party or children. For example, each party is often enjoined from “threatening the other party in person, by telephone, or in writing to take unlawful action against any person,” “intentionally, knowingly, or recklessly causing bodily injury to the other party or to a child of either party,” or “threatening the other party or a child of either party with imminent bodily injury.” If an order in language similar to these examples is entered in your case, you may be subject to prosecution for a federal felony if you possess any firearm or ammunition. When a final order replaces the temporary orders, you will be permitted to possess these items again unless the final order also contains such injunctive language.
When a potentially violent spouse won’t agree to secure weapons with a third party or in another safe place, you may have other options and your divorce attorney can explain the other safety precautions to take. However, if you fear that you and/or your children are in danger and an incidence of domestic violence has occurred within the past three to six months, your divorce attorney can help you get an ex parte protective order. If the order is granted, your significant other would be immediately banned from having any firearms and may also prohibited from entering the family home. Keep in mind, if the party is a peace officer or member of the military they could be exempt, and therefore not prohibited from possessing a firearm.
It’s always a smart idea if you’re dealing with domestic violence in your marriage or any relationship that you have a safety plan in place and your divorce attorney can help you. Know where potential weapons are stashed in your home, call the police if tensions escalate and have a plan to get out. If a protective order is entered against you, you may be subject to prosecution for a felony if you possess any firearm. In addition, if you are convicted of the misdemeanor crime of domestic violence, you may be subject to prosecution for a felony if you possess any firearm.
If you, your children or a loved one have experienced domestic violence 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 and help.