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Getting Ready for a Hearing On Temporary Custody Orders

Often, it feels that the hearing of the Temporary order comes very quickly. There have been times when representing the Petitioner, there have only been 14 days’ notice or when representing the Respondent only 3 days’ notice to prepare. Therefore, good organization and helpful trial exhibit ahead of time in an effective presentation in court.

The purpose of this blog article is to answer common questions that many people have regarding temporary ordershearing and to give you an idea of what to expect when preparing for the hearing and when you testify. The ideas in this article will apply not only to clients but in part also to other witnesses.

Steps and Exhibits for Aid in a Temporary Orders Hearing:

  1. Write a history of your marital relationship with your spouse. This history should contain dates and facts supporting your claim for custody.
  2. Make a list of all the reasons you are best for custody, supporting facts, and dates.
  3. Make a list of all the reasons why your spouse should not be appointed custodian of the child, with supporting facts and dates.
  4. Please make a list of all witnesses you will need at the temporary hearing, names, addresses, telephone numbers, and a summary of what they know. Also, determine if they need a subpoena.
  5. Fill out the financial information statement on your income and living expenses.
  6. Make an appointment with your attorney to discuss strategy, if possible, 7 days before the hearing date.
  7. Develop a plan to manage the child now—from day to day, while you are employed.

Testimony in Court

You are about to testify in a Temporary Orders hearing. Testimony takes place in the courtroom before a judge. You will be testifying at a temporary hearing. Testimony in a final hearing may be to a judge or, in some cases, to a jury.

There may be a court reporter present, a bailiff, both parties, and their attorneys at either the temporary hearing or the final hearing.


If you are testifying, you need to dress for your testimony as if you were going to church. Women need to wear darker clothing, no expensive, flashy jewelry, and light makeup. Men should wear a suit or at least a tie.

Everyone is nervous before testifying. However, never “fortify” yourself for testimony by taking tranquilizers, drinking alcohol, or having anything else that will either slow down or speed up your nervous system.

If you are testifying, remember that you will be observed both in and out of the courtroom by jurors (perhaps), attorneys, witnesses for the other side, and sometimes, the judge. If any, jurors may see you in the elevator or on the stairway at the courthouse, or in the restroom or on the street. They may see you driving to the courthouse in your car.

You must courteously conduct yourself at all times. Obviously, a witness will not make a good impression on the stand if he has had an unfriendly encounter with a juror in traffic, or if after his testimony, a juror hears him in the hall laughing at something humorous occurred in the courtroom. At the same time, you are at the courthouse, either before or after your testimony, be serious. Please do not joke with other witnesses or attorneys or do anything else that might give a juror the impression that you are taking your testimony, or the case itself, lightly.

If your case is to a jury, try to avoid the individual jurors. A friendly smile to a juror is all right if it is not forced. You might even say, “good morning.” But under no circumstances should you ever enter into any conversation with any juror for any reason at any time. The same rules will apply to the judge.


Always tell the truth when testifying. Failure, to tell the truth constitutes perjury, a crime under the Texas Penal Code. Tell the truth to the best of your ability, whether it may “help” our side’s case or “hurt” our case. Please do not exaggerate or try to make anything seem better or worse than it really is.

I hope that you have not held anything back in our previous conversations. Some clients and witnesses feel that, if they do not tell everything to their lawyer, the other side may not know or find out about the concealed facts. The problem with this approach is that the other side may know those detrimental facts, or learn about them, while I am not aware of them. The only way that I can be properly prepared to explain or perhaps overcome the impact of detrimental facts is to know about them in advance and not hear about them for the first time at a hearing or trial.

The corollary to this rule is that, once I am aware of these facts, I cannot allow you to question these detrimental facts and be untruthful about them.

It is also important for me to know if you have ever had any prior arrests, criminal convictions, or other allegations of wrongdoing to misdeeds made against you, whether fairly or not. The other side may try to use this to “impeach” your testimony, and therefore, I need to be aware of this information.

Finally, if you have made any statements to police officers, investigators, etc., whether orally or in writing, you need to let me know about that. You have a right to copies of any written statements which you have made. Additionally, if you have written any letters, cards, or other writings to the other side, which bear on any issues in the case, you need to let me know. This is particularly true if those writings contain information that you might not want to hear in the courtroom. The same rule applies to telephone conversations. It is not uncommon for one party to a lawsuit to record their conversation with another party to the lawsuit, and, if you have said anything to your spouse or ex-spouse, which you would not want to be repeated in the courtroom, you need to let me know about that also.


When I am asking you questions, it is called “direct examination.” I must ask questions that are non-leading and which do not suggest the actual answer. The questions that the other lawyer will ask you are “cross-examination.” He may ask you were leading questions; that is, questions that suggest answers. When the other lawyer asks you these questions, he is trying to “put words in your mouth.” Many times, leading questions begin with, “isn’t it a fact,” isn’t it true that,” or similar

questions. If you sense that the answer is in the question, be careful. These questions may contain implications that are only partially true and that require an explanation.

Different lawyers have different techniques in cross-examining witnesses. At the outset of the cross-examination, the other attorney may appear friendly, but remember that he represents the other side of the lawsuit. At the outset of cross-examination, many lawyers are careful not to antagonize the witness so that the witness will prove what appears to be non-controversial information voluntarily and readily.

Once this information is obtained, the lawyer will ask the harder questions and press the witness. The moral of this story is that, although the other lawyer may appear to be friendly, he or she is not your friend; be careful that he or she does not lead you into saying something that you do not believe.

Remain calm and polite, and do not lose your temper no matter how hard you may be pressed. Even though something may happen during your testimony that makes you angry or embarrassed, always be courteous to everyone, including the judge, the jury, and particularly the lawyer who is cross-examining you. Many times in life, it may be appropriate to “talk back” or make some wise-crack, but it is never appropriate when you are testifying.

Neither judges nor juries like witnesses appear to be flippant, antagonistic, vindictive, or hostile, and this type of behavior can only harm the case. When answering the cross-examining attorney’s questions, give him the information in the same tone of voice and manner that you do your own attorney’s questions.

For example, a woman would be simply stating the facts and would be an effective witness if she reluctantly said that her husband slept until noon every day. On the other hand, if she were to go on and add that he was a “worthless, shiftless, lazy person who slept every day until noon,” her vindictiveness would be very likely to help the cause of her husband.

Never answer a question with a question. For example, if the other lawyer asks you, “how old are you?” you do not answer with “how old do you think I am?”

Do not react while the other party, or a witness for the other party, is testifying. It would help if you remained calm, and your expression should not change no matter what the testimony is from the witness stand. No one likes histrionics from a client at a counsel table.

Do not try to memorize what you will say in your testimony, either in response to my direct examination or cross-examination. You will sound coached and far less believable than if you are simply spontaneous. It is a good idea for you to have a general idea of what you intend to say, but do not worry about saying it the same way every time.

If you have previously been deposed, we will review your deposition testimony before your hearing or trial testimony; but again, do not try to memorize the answers you gave on the deposition. You need to be familiar with what you previously said and give clear, truthful answers without exaggeration.

At both a hearing and a trial (or at deposition), speak clearly and not mumble. While you are on the witness stand, at a hearing or trial, look at the jury members or the judge. Talk to them, and speak to them frankly as you would to a neighbor or a friend. Do not cover your mouth with your hand. You must speak loudly enough for everyone in the courtroom to hear from you.

Avoid certain expressions like “to tell you the truth,” or “I’ll tell you the truth,” or “to be honest,” or “well to be perfectly frank,” etc. The judge (or jurors) may be suspicious of witnesses who begin their testimony with these statements. They may believe that a witness who has to keep telling them that something is the truth may not be telling the truth.

Although you and I will discuss the different areas upon which you will be cross-examined and the types of questions I believe the other lawyer will ask, there will certainly be some questions that we have not discussed. If the other lawyer asks you a tough question, do not turn and look to me for the answer. Look him in the eye and answer the questions as truthfully as you can. I will not let the other lawyer abuse you on the witness stand, but I cannot keep him from asking you hard questions, nor can I provide you the answers.


Everyone is nervous when they testify, and nervous people tend not to comprehend things as well when nervous. Do not hesitate to ask the other lawyer to repeat or rephrase the question, as many times as necessary, until you are certain that you have understood it. If you do not believe that you heard the questions correctly, ask the lawyer to repeat it.

Once you are certain that you have heard the question correctly and understood it, answer it, but answer only the question that is asked of you and then stop. I do not mean to be evasive -- provide the requested; but, once you have done this, stop talking. Do not provide additional information.

You do not testify on cross-examination to “tell your story.” You testify only to answer the questions asked, and, on cross-examination, the best answer to any question is the shortest honest answer.

For example, if you are asked how many children are in your family, give the number. Do no answer like this: “We have two children. I would have liked many more, but because my spouse spent five years in the penitentiary, we were unable to have a larger family.” This is what I mean when I say do not volunteer information.


Many witnesses think that they are supposed to know the answer to every question that is asked. Do not guess at an answer. If you do not know the answer to a question, even though you feel you may appear ignorant or evasive by saying that you do not know, you should nevertheless do so. It is always wrong to guess or estimate.


As stated above, speak loudly enough so everyone can hear you. Do not nod or make gestures, as the court reporter cannot record these.


Be careful with questions involving distances and time. If you estimate distances or time in any of your answers, be sure that you say that it is an estimate.


When you testify about conversations with other people, be sure to clarify whether you are paraphrasing comments made by you or the other persons or whether you are quoting directly what was said.


Nothing “always happens,” and nothing “never happens.” Eliminate adjectives and superlatives such as “never” and “always” from your vocabulary when testifying.


Please do not plan to use any notes, diaries, or any other documents to assist you during your testimony unless you have reviewed them with me. If you refer to notes, etc., the other lawyer will have the right to examine those documents during your testimony. Use of notes to refresh your memory or any other such documents will allow the other side to examine them.


If information is in a document you need to see to testify truthfully and accurately, ask the other lawyer to provide you with a copy of that document if you know that he has it. When confronted with documents, scrutinize them. If you hadn’t seen a particular document before or did not prepare it, don’t try to guess what it means and don’t vouch for its accuracy.


If at any time during your testimony at hearing or at trial, you realize you have made a mistake, correct your answer as soon as you recognize you have made an error.


Do not let the other attorney put words in your mouth. If it is necessary, restate or rephrase in your own words the attorney’s question. Pay particular attention to introductory clauses preceding questions. Please do not accept the other attorney’s summary of your testimony unless it is completely accurate.


Beware of questions by the other attorney beginning with works similar to “is that all.” THE OTHER SIDE IS ATTEMPTING TO FREEZE YOUR TESTIMONY. A good answer to such a question would include phrases such as “to the best of my recollection at this time,” “that is all I can remember at this time,” etc.


Ensure that you allow the other attorney on the cross, and me on direct, to complete our questions before you begin to answer. If you interrupt the cross-examining attorney, you may answer a question that he is not really even asking, therefore providing him additional information to ask more questions about. If you interrupt my questions to answer a question, it will seem as if we have rehearsed your testimony.


Many times a question will contain several questions. For example, “when you talked to Adam, didn’t you say that you were in Houston and didn’t have time to drive to Tyler to meet with John that afternoon?” It may not be possible to give an accurate answer unless you answer the questions one at a time. In such a case, you may say, “the question has several parts, and I will try to answer each one.

When I spoke to Adam, I don’t believe I told him I was in Houston. I said it would be difficult to meet with John that afternoon, but I don’t believe I told Adam about meeting John in Tyler.” However, the best way to handle this is to tell the other lawyer he asked you more than one question and ask him to break the question down for you.


Many times, in the heat of battle, the other lawyer may interrupt you while you are trying to answer a question. Let him finish his new question, and say, “before I answer that question, I need to finish the answer to the last question.”

If you haven’t finished an answer, that is, if your answer to a question is not complete, you need to say so. Don’t count on the judge or the lawyers to know that your answer was cut off.


While you should never volunteer information on cross-examination, there are times when you need to explain. Some questions cannot be answered with a “yes” or “no” answer.

An example is, “have you stopped beating your wife?” Obviously, this question cannot be answered by either a year or no answer because either answer would imply guilt. A short answer setting forth the facts would be called for.

Remember that the other lawyer is motivated to make your answers fit his case. Sometimes a lawyer may even try to force your answers to be what he wants to hear. He may try to intimidate you with commands of “just answer ‘yes’ or ‘no.’”

If you can’t answer the question that way, say so. Be prepared to insist that a question cannot be answered with a simple “yes” or “no.” Be prepared to insist that the answer requires some explanation. I will be there to help you get a complete answer to the record.


There will be many objections during the trial. Whenever an objection is made while you are testifying, stop instantly, particularly when I am the one that objects. Do not try to answer the judge's rules on the objection. Wait until the judge has ruled. If the object has been “sustained,” the judge believes the objection is correct.

If an objection is “overruled,” the judge believes the objection is not correct. Do not try to decide what the effect of an objection is on your testimony. When the objection is being made, and the judge is giving his ruling, wait silently. After the judge has ruled, either you will be asked another question, or you will be told what to do next.

Whenever the judge tells you something, of course, you will follow his instructions. One common instruction is, “please just tell us what you observed, don’t tell us what anybody else told you.”

We will go over these rules before your testimony begins, so don’t be concerned about learning the rules of evidence. Whatever you need to know at the courthouse, either the judge or I will tell you.

If a question is asked that you do not wish to answer, do not turn to the judge and ask, “judge, do I have to answer that question?” If the question is improper, I will object. If I do not object, answer the question as truthfully and honestly as you can. If there are any questions that you do not want to answer, tell me now, before you give your testimony, so that we can protect you from having to answer any improper question.


This applies only to clients while others are testifying. During the testimony of someone else, do not tug at my sleeve, whisper in my ear, or give me a nudge. I am trying to concentrate on the testimony, and I cannot listen to that

testimony and listen to you simultaneously. Make a note of what you wanted to tell me. When the other lawyer’s examination of the witness is complete, I will review those notes either at the beginning or at the end of my redirect or cross-examination of that witness.


You should never be embarrassed about admitting that you have met with and consulted with me before your testimony. If asked what you talked about, say that I instructed you to be truthful and honest.

The other lawyer may ask you, “who have you talked to about this case?” The other lawyer may suggest that some person has prepared you for your testimony, and sometimes he goes even further and suggests someone has told you what answers to give—there in nothing wrong with having spoken to me about your testimony.

If you have talked with your family members, your doctor, your pastor, your counselor, or anyone else, do not be afraid to say so.

There is absolutely nothing wrong with talking about your case with other persons, as long as you do not violate the witness role discussed later in this paper. People who say they have never talked to anybody else about their case, or their testimony, usually will not be believed. The important point here is that no one should ever be allowed to tell you what your testimony should be. I will never tell you what evidence to give;

I will never tell you to cover the facts in a certain way, or to lie, or to distort the truth. What you and I will discuss before you testify is simply the most effective way in which, to tell the truth.


After testimony at a hearing or trial, do not chat with the other side or their lawyer.


Do not try to figure out before you answer whether a truthful answer will help or hinder our case. Answer truthfully. I can deal with the truth effectively, but I am handicapped when you answer any other way.


As witnesses are sworn in at the beginning of their testimony, one of the lawyers will usually “invoke the rule.” The rule is also sometimes called the witness rule. The most important thing you need to remember about the rule is that the testimony must be your own.

Your testimony must not be affected by the testimony of others. If you are not a party, you must not see or hear the testimony of others.

Neither a party nor witnesses may discuss their own testimony or the testimony of others. If the rule has been invoked, the judge will place you under oath and explain the rule's meaning to you. From that point forward, until the case is over, you may not discuss any facts of the case with any person but for me. Only the lawyers in the case will be able to discuss the case with you.


Even though the judge may not formally “place you under the rule” and explain it to you, do not assume that the rule has not been invoked. Always assume that you are under the rule unless I tell you otherwise.

To comply with the rule, once the case has begun, do not discuss the case's facts with anyone but me. Do not discuss the facts of the case with your spouse, or any member of your family, or with anyone you work with, or with anyone who will or maybe a witness in the case.

If you are my client, do not discuss the facts with any witness we have asked here on your behalf, and do not discuss the facts with any witness who may appear for the other side. If you witness and have been asked to appear, either by my client or by me, do not discuss the facts with my client. If you are a witness, and the lawyer on the other side asks to speak with you about the facts of this case, the best thing to do from my client’s point of view is to decline to speak with him or her unless I am there.

Unfortunately, some people do not follow the rule. If you see or overhear anyone else discuss the facts of the case, you need to let me know right away in disobedience of the judge's order. If a witness violates the rule, there can be dire consequences.

For example, the judge may order the testimony of the defending/offending?? witness to be “stricken from the record,” which means it would be just as though the witness had never testified. Additionally, since it is an order of the court given to you personally if you disobey that order, the judge can hold you in contempt of court and punish you.

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Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers

The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's important to speak with one of our Houston, TX child custody lawyers right away to protect your rights.

Our child custody lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles child custody cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.

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