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Texas Emergency Custody Order Guide

My recommendation is that you will need a family law attorney if you need to file for an emergency custody order.

However, if that is not an option for you and you must represent yourself at a temporary hearing in family court, this guide should only be used as a starting point to provide you an overview of the process.

Every case is different, and the proof required to get what you want in a Temporary Orders Hearing depends on the pending case's nature. The way a family law Judge explained it to me is that “you have to give the Judge what the Judge needs to get what you want.”

Other considerations for your case include:

  1. the local rules of the court and the judge
  2. The Texas Family Code and
  3. The Texas Rules of Civil Procedure

Many but not all courts have their local rules available online on a webpage that they have set up. If this is not the case, you may be able to call the court and speak with a clerk of the court who will be able to let you know about the court's local rules.

If there is time, a good idea would be to sit in the court where your hearing is to take place and watch how the Judge handles cases. Every judge does things slightly differently and expects different things.

What are Temporary Orders?

A Temporary Orders hearing after a petition for Texas divorce or custody is filed with the court. This hearing puts orders in place until the final trial is held or the case is settled by agreement.

In a custody case, Temporary Orders Cover:

  1. Who will be the primary parent in possession of the children
  2. Temporary conservatorship/custody of the children;
  3. What sort of visitation with the children will have with the parents
  4. Temporary possession of and access to the children (possession schedule);
  5. The amount of temporary child support
  6. Temporary medical support;
  7. Which parent will be responsible for providing health insurance
  8. Whether temporary injunctions need to be put in place

Maintaining the Status Quo

Often the court does not want to make any major changes to the parties' lives by its Orders. An example of this would be the Court Ordering a party to maintain health insurance for the children.

What is a Temporary Restraining Order?

Sometimes filed with the Petition for Divorce or in Custody cases is a request that the court issue a mutual temporary restraining order (TRO)

This TRO is issued without a hearing and is used to help maintain the status quo until the spouses or parents can reach an agreement or until there can be a hearing for Temporary Orders.

A TRO generally does not mean you can not be around the party. Generally, that means to be on your best behavior. The following are examples of standard injunctions in a custody TRO:

  1. Disturbing the peace of the children or another party.
  2. Causing bodily injury to the other party or a child of either party.
  3. Withdrawing the children from enrollment in the school or day-care facility where the children are presently enrolled.
  4. Hiding or secreting the children from the Petitioner or Respondent
  5. Making disparaging remarks regarding Petitioner or Petitioner's family in the presence or within the children's hearing or on any form of social media.
  6. Making disparaging remarks regarding Respondent or Respondent's family in the presence or within the hearing of the children or on any form of social media.
  7. Discussing any litigation concerning the children in the presence or within hearing of the children or on any form of social media.

What is emergency custody (temporary) order – Extraordinary Relief?

An emergency custody order (TRO with a Request for Extraordinary Relief) would immediately put an order in place without providing notice to the other party.

However, unlike with a standard TRO, when you are requesting Extraordinary Relief, you will need to attach an affidavit and any other exhibits to support your emergency request.

The most common types of emergency orders deal with minor children.

How do I get an emergency custody order for my child?

First, you must make sure you file a custody petition. There are different types of custody petitions to choose from, including:

  1. Divorce
  2. Establishment of Paternity, or
  3. Modification of an existing custody Order

Depending on your situation, you would file the correct petition. In addition to the petition, you would include a request for a TRO asking for Extraordinary relief.

The Petition and the TRO work together. A rule of thumb is for every motion; there is an order. A motion (Petition) is a request, and the Order is what the judge will sign, granting your request.

Your emergency motion (Petition) will be the document that requests court for temporary order and TRO.

You will need to include in your emergency motion what the emergency is and why the judge should sign it without notifying the opposing party.

It will allege that there is a need for emergency relief for a minor child. It will state that there is some form of immediate danger and harm to the child.

Typically, to get a ruling, everyone is entitled to notice and an opportunity to be heard before a judge makes a ruling that can impact them.

This is why, as stated earlier, an affidavit or affidavits should be attached that go into detail about the nature of the harm to the child.

This is necessary because it is the only evidence that a judge has to grant you what you ask for. There has been no hearing on the evidence. There will be a hearing at some future date, but depending on the situation, this procedure makes it possible to get emergency relief.

What types of things would the court consider “immediate danger and harm?”

Immediate danger and harm is largely a discretionary decision for the judge reviewing the paperwork.

Examples of what a judge may consider “immediate danger and harm” include:

  1. Significant drug or alcohol abuse
  2. Physically or sexual abuse
  3. Emotional or verbal abuse will probably not be enough.

What evidence do I need to show the judge that there is immediate harm or danger to my child?

The evidence will be an important factor in whether a Judge will grant you an emergency order.

If you have no proof, you will not get an emergency order. Proof includes:

  1. Affidavits
  2. Police reports
  3. Photos
  4. Text messages, or
  5. anything else relevant to the situation.

After I have drafted my petition and motion and gathered all my evidence, what do I do with it?

You will need to go to the district clerk either where your old case is or no prior case, the county where your child is living. Once there, file the documents with the clerk.

You will need to bring the originals of the documents and two or three copies. The clerk will stamp your documents, file the original, and give you your copies back.

Depending on the county you live in, you may or may not be able to approach the Judge by getting signed up on the “uncontested” docket. If that is the case, you may tell the judge the situation and get the relief that day.

However, not all counties handle it that way. You may not get an opportunity to speak with the judge and may have to wait for the judge to review the paperwork before finding out if the judge will grant your motion without a hearing.

The judge granted my emergency order. Now what?

If the judge grants the order, it is effective immediately. There still ultimately will be hearing. However, until that Temporary Orders hearing, you have some band-aid relief to get to that hearing where a judge can make a more permanent order.

Once that hearing is held, the opposing party will be allowed to defend himself or herself. You then should make sure to prepare for that hearing. You will probably have to testify and present evidence.

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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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