G. Firearm Safety and Addressing Known Lethality Factors

Child welfare professionals and judges should identify whether firearms are present in the home and/or available to the perpetrator. Even if a person legally possesses a firearm, if they have used their access to a firearm or the actual firearm to threaten any person in the family or at the home, there is a real risk to safety of all persons, including children, that should be taken seriously by child welfare stakeholders.

Research has shown that the majority of female homicides were committed with firearms—more than all other means combined.[223] In Texas, 67% of intimate partners were shot and killed by their partner in 2020[224]. Firearms amplify the inherent power and control dynamics characteristic of abusive intimate relationships. When perpetrators have access to a firearm, the risk of intimate partner murder increases dramatically.[225] National Domestic Violence Hotline survivor callers whose abusers had access to firearms reported the following: 10% said their abuser had fired a gun during a domestic violence incident, 22% said their abuser had explicitly threatened to kill them, their children, families, pets, friends, and/or to commit suicide while 67% said they believed their abusers were capable of killing them.[226]

Child welfare professionals may not be aware of an existing dynamic of domestic violence between the parents by the time the case comes to court, unless a mandatory report was made by police who went out on a domestic violence call. In addition, it is unlikely that a child welfare investigator will be immediately aware of whether or not the domestic violence perpetrator owns a firearm.

Questions for Judges to Ask About Firearm Safety:

•   Does the perpetrator own or have access to a gun?

•   Does the perpetrator have any prior history of domestic violence or a history of using weapons (including plea deals and charges that were deferred)?

•   Has the perpetrator ever threatened to kill the survivor parent, the children, or themselves?

•   Has the perpetrator ever threatened the survivor parent with a gun or weapon prior to the hearing?

•   Ask the survivor parent and the perpetrator if there are any guns or weapons in the home. To minimize risks to the survivor parent and children, do not ask the survivor parent questions directly related to their own safety in open court. Instead, involve a domestic violence advocate from your local domestic violence program who could ensure that the survivor has access to information, safety planning and support if they choose.

•   If guns are present and there is concern about how to move forward to decrease the lethality risk for the survivor parent and children, judges are encouraged to reach out to their local Domestic Violence Program or to contact the Texas Council on Family Violence.

Federal Laws Addressing Domestic Violence and Firearms

Federal law[227] prohibits possession of a firearm or ammunition by persons convicted of a misdemeanor crime of domestic violence, which is defined as:

•   A misdemeanor under Federal, State, Tribal, or local law;

•   Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, and

•   Committed by one of the following

◦   a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common,

◦   a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian,

◦   a person similarly situated to a spouse, parent, or guardian of the victim, or

◦   a person who has a current or recent former dating relationship with the victim.

It is important to note that the prohibition is permanent for all of the above persons, except for current or former dating partners. In that instance, the prohibition is for five years. In addition, unlike Texas law, a conviction for a family violence class C offense of assault by offensive contact can qualify as a prohibiting conviction. See United States v. Castleman, 134 S. Ct. 1405 (2014).

Orders of Protection

Federal law prohibits possession of firearms or ammunition by a respondent in any order which restrains the person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The federal definition of intimate partner is limited to the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person. Also, the order must be one issued after a hearing in which the person received actual notice and had an opportunity to participate.

Texas Laws Addressing Family Violence and Firearms

Texas law prohibits family violence and dating violence Class A misdemeanants from possessing firearms for five years after release from confinement or community supervision.

•   Tex. Penal Code § 46.04(b) (Unlawful Possession of a Firearm)

Respondents to ex parte and permanent protective orders are prohibited from possessing firearms for the duration of the order.

•   Tex. Penal Code § 46.04(c) (Unlawful Possession of a Firearm);

•   Tex. Penal Code § 25.07(a)(4) (Violation of Certain Court Orders or Conditions of Bond In a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case);

•   Tex. Fam. Code § 85.026 (Warning on Protective Order); and

•   If a magistrate includes a firearm prohibition in a magistrate's order of emergency protection issued after an arrest, possession of a firearm by the respondent during the duration of the order is a violation of state law. Tex. Code of Crim. Procedure Art. 17.292 (Magistrate's Order for Emergency Protection)

•   Tex. Penal Code § 46.04(c) (Unlawful Possession of a Firearm)