Have you recently gone through a child custody case in Texas but don’t necessarily like or agree with the result? If you have attended a trial in front of a family court judge, then it is not out of the ordinary to disagree with some or all the judge’s rulings. Remember that family court judges make mistakes. Sometimes we see a judge as this imposing figure, but the reality is that the judge is doing their best to assess evidentiary issues, listen to testimony and make decisions that are in the best interests of your child. This is a lot to keep straight.
However, this is also not to excuse a bad decision or unjustified decision made by a judge. Whether the judge misapplied the Texas Family Code or misinterpreted evidence submitted by you or your co-parent there are opportunities for a judge to make critical errors in even the most straightforward of family cases. With that said, we at the Law Office of Bryan Fagan want to make sure that you all are aware of the circumstances under which a child custody appeal may be in the best interests of you and your child.
For starters, the Texas Family Code contains over 1000 statutes. A statute is another word for a law that was created by the state legislature. These statutes are guideposts for family court judges to be able to make rulings in your and any other child custody case which goes before them. How a judge chooses to apply the Texas Family Code to your case will depend upon the circumstances that your family finds itself in. In an appeal, it is certainly possible that the judge made an error or misapplied the Texas Family Code to your case.
Next, it needs to be looked at whether the judge in your case misinterpreted evidence that was submitted by either you or your co-parent into the record of your case. For that reason, you may file an appeal to bring to an appellate court’s attention the mistake made by your trial court judge. Much of the evidence submitted in a child custody case is extremely circumstantial. The judge needs to be discerning about how he or she applies the evidence against the Texas Family Code so that he or she does not oversell or undersell the importance of the piece of evidence.
In an appeal, you are not able to present new evidence for an appellate court’s consideration. Rather, you are asking the appellate court to consider whether the trial court judge made a mistake at some point during your trial. It could have been an issue with misapplying or misinterpreting the Texas Family Code. Pieces of important evidence may have been excluded from the record when that was not appropriate.
What you cannot do in an appeal is submit additional evidence for the appellate court to consider. Rather, you will be asking the court to consider the record as it stood at the trial court level and will ask the appellate court to make a ruling on whether the decisions made at the lower level should stand or if the case can be reheard. While the requests that you will be making to the court may be simple the tricky part is getting everything lined up so that you can present your case.
This is where the attorneys with the Law Office of Bryan Fagan come in. We are here to be able to assist you in filing an appeal, assessing what happened at the trial court level, and determining first whether an appeal is the best route for you to take. There are different options that we are going to discuss with you today as far as what you can do if you not only disagree with a trial court’s decision but believe that errors were made in the case. Our professional group of family law attorneys know what it takes to win at the appellate court level and have the results to back that up.
We take this complex process and break it down into its component pieces to best ensure your success on appeal. Requesting a copy of the record from your prior case, and reviewing the evidence that was submitted but also the evidence that was rejected by the court is important. Determining whether the judge made errors and in what contexts is another necessary step that can be confusing. If you have questions about the results of your child custody case at the trial court level and fewer than 30 days have passed since the decision by the judge was issued, then you should reach out two-hour office. We can look at the circumstances of your case with you and help you to determine what direction you may be able to go in your case.
We know that you may have more questions than answers at this point in your case. Additionally, finding answers to those questions can be hard to come by on the Internet. Finally, the entries you find on the Internet will not reflect your specific circumstances but will provide you with general information based on circumstances that many other people may find themselves in. However, until you can find information that is based on your specific life and your children’s lives then you will not know whether or not you stand a good chance to win on appeal in Texas.
For that reason, we recommend that you reach out to the attorneys with the Law Office of Bryan Fagan today. We can offer to meet with you today at no charge to you for a consultation. We can listen to your situation, provide you with information and help you determine what the best course of action is depending upon the situation you find yourself in. Time is of the essence in an appeal so do not delay in contacting our office to find out more about your chances of success upon appeal.
A motion for a new trial in a Texas family law case
When you receive an outcome in a divorce or child custody trial it can feel like all your hard work and patience were for nothing. Now you are left with a situation where your co-parent seems to have gained the upper hand in important conservatorship and custody circumstances. The last thing you may want to do is consider lengthening your experience with the family court but that may be exactly what is necessary in this instance. Filing a motion for a new trial is not appropriate in every instance where you are not happy with the results of a trial, but you may find yourself looking at results that are not appropriate due to an error made on the part of a judge.
Filing a motion for a new trial allows you to present an argument to the court that those errors resulted in an outcome for your case which was inappropriate and not in line with the evidence presented in the trial. A motion for a new trial is a continuation of the facts and circumstances of your family law case. You are not appealing the decision to a new group of judges but rather asking the court who issued the decision to review the material contained in your motion and consider whether a new trial should be held.
A motion for a new trial needs to be filed within thirty days of the court issuing its decision (s). The same judge who heard evidence in your trial would have the opportunity to correct mistakes that were made in applying the law to the circumstances of your case. You will need to be specific about the error(s) made at the trial level in your case as well as what you want the court to do for you in response to those errors. If the error was serious enough that the court determines that the results of the trial were impacted by the error, then a motion for a new trial will be granted.
Finding new evidence
Discovering new evidence which was not known to you or available at the time of your trial is grounds for filing a motion for a new trial. Again, however, that evidence must be so important that a different result would have occurred in the trial had the evidence been presented. That the evidence was not known to you at the time of the trial must not have been due to a lack of due diligence on your part. Finally, you need to be able to show that the evidence is admissible. Admissible evidence is the type that can pass the objections of an opposing attorney. If the evidence’s authenticity is in question or if the evidence is hearsay, then you would not be able to win a motion for a new trial based on that sort of evidence.
What if you didn’t respond to the petition originally? Can you file a motion for a new trial?
It sometimes happens that you may have received bad advice or otherwise been unaware that your spouse or co-parent filed a divorce or child custody case. Your co-parent needs to serve you with notice of the lawsuit. Notice means that you would be made aware of the lawsuit, at least legally if not in actuality, and that the lawsuit would then be able to proceed. However, suppose that you either were served with papers and did not respond or legitimately did not know about the lawsuit having been filed in the first place. What happens then?
If your co-parent is on the ball, she likely followed the rules of the court and waited to have a default judgment rendered against you. This is a judgment that she received from the court in response to your not having participated in the lawsuit despite having been served with notice. If you truly were not served correctly or were unaware of the lawsuit you can file a motion for a new trial which should be granted without much argument. There are arguments for you to make that out of fairness you should be able to participate in such an important case. Those arguments become weaker when you were physically served with the paperwork and just chose not to play ball, however.
What role does an attorney play in all of this?
You do not need to hire an attorney to represent you on an appeal or motion for a new trial. However, it is highly recommended that you hire an attorney simply because having someone by your side who has gone through this sort of case before can create a much better outcome for you and your family. Consider what you would do if you had a problem with your vehicle’s transmission. Would you take the car to a mechanic or roll underneath the car in your driveway and start to take a look?
The same principle applies in this world of family law. The stakes in a family law case are much higher than trying to fix a broken-down vehicle, too. What happens in a family law case can impact you and your children for years to come. With so much at stake in your case, it would be important to at least consider whether to hire an attorney for your initial child custody case and then for an appeal, as well. If you wouldn’t try to fix your vehicle, then why would you try to represent yourself in an appeal for child custody purposes?
Fortunately for you, there are experienced attorneys here in the Houston area who focus their attention on family law cases. On top of that, you can find attorneys who have succeeded on behalf of their clients in appeals, as well. The attorneys with the Law Office of Bryan Fagan are proud to say that we have achieved great results for clients both at the trial court level and upon appeal. Whether you need an attorney in your first child custody case or are looking to find a lawyer who can help you file a motion for a new trial or an appeal, we are here for you.
Be careful about the attorney you decide to hire in your appeal. Even if you try to hire a family law attorney that does not mean that you are going to be able to hire the right one for you and your case. Most family law attorneys do not have the experience that you need to be able to help position you to win an appeal or motion for a new trial. There is already a lower level of success that is expected at the appeals level than at the trial court level. Adding to those difficulties by choosing to work with an attorney who has not represented clients upon appeal before is making a tough situation even tougher.
While it is a good idea to learn as much as you can about the appeals process in Texas from reading through blog posts like this one, ultimately what you will need to do is learn about your specific case and its chances of success. The best way for you to be able to do this is to speak with an attorney from our office. We can schedule a free-of-charge consultation where you can ask questions and receive information about your circumstances. Our attorneys have a perspective on appeals that are based on experience. Whereas some attorneys will share with your opinions based on what they have heard about appeals we can share with you opinions that are based upon our specific experiences and representing clients and families just like yours.
There are also options like attending mediation which may suit you and your family better than filing a motion for a new trial or trying to appeal a decision. Attending mediation early in a family law case can help you to avoid circumstances where a long and drawn-out family law case occurs. By avoiding a trial, you can avoid the possibility of a judge making a mistake or misapplying the law to your case. Therefore, there would be no need for you to consider an appeal or motion for a new trial in that circumstance.
No matter what, you need to be able to take a step back and assess your situation as honestly as possible. Filing a motion for a new trial or an appeal with no chance of success does you no favors or your children. The only way you can have any degree of assurance that you are doing the right thing by filing a motion for a new trial or an appeal would be to speak with an experienced family law attorney who handles appeals and motions for a new trial.
Ebook
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “Child Custody E-Book”
Other Related Posts
- Navigating Custody Enforcement in Texas
- Changing Your Child’s Name in Texas After Custody Determinations
- Navigating a child custody case in multiple jurisdictions
- What is a right of first refusal in a Texas parenting plan?
- How Do I Lose Child Custody in Texas?
- Can Police Enforce a Child Custody Order in Texas?
- Substance abuse and child custody
- Guarding the Truth: Chain of Custody-Affidavit
- Securing the Chain Of Custody
- What is The Most Widely Used Standard For Determining Custody?
- What is The Least Common Form of Custody Arrangement?
- What Custody Split is Best For Children?
- What is The Best Custody Arrangement For A Baby?
- What Are The Disadvantages of Split Custody?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
