A temporary orders hearing may not sound like a big deal based on its name alone. After all- “temporary” means not permanent and therefore not important, right? If you can change something later on why get upset about the results of something that are not set in stone?
The reality is that a temporary orders hearing is in fact a mini-trial. You and your opposing party are putting forth your cases to compete for a judge’s decision that will favor one of you. Much of what you hear in your temporary orders hearing will be repeated in a trial should your case make it to that point.
Another important reality is that the results of your temporary orders hearing will set the tone for the remainder of the case. Once a judge issues temporary orders it will take something fairly dramatic to change the judge’s mind in a trial setting. For example, if you have won temporary primary conservatorship of your child during a divorce then it is likely that you would be named the permanent primary conservator in a trial. The reason for this is that judge’s don’t like to upset the status quo so long as that status quo is working well for you and your family.
So, suffice it to say that a temporary orders hearing is extremely important to the remainder of your family law case and your life in general.file your With that said- if you attend one of these hearings and the results don’t go the way that you had hoped for what are your options to have a “do-over”? Can you appeal the results of a temporary orders hearing? Today’s blog post from the Law Office of Bryan Fagan, PLLC will touch on that very subject.
A lawyer’s favorite answer to any question asked of him or her
If you have ever hired an attorney and then asked him or her a tough question it is likely that he or she smiled at you sheepishly before answering, “It depends.” So much of the law depends on relatively minor facts and circumstances that can have a dramatic impact on your case overall. Let’s chat, then, about what factors are relevant to your ability to appeal the decision made in your temporary orders hearing.
You will need to consult with your attorney to find out if the county where your hearing was held will allow for an appeal to be heard of the temporary orders that were just issued. In many counties in Texas temporary orders hearings are exclusively heard before an associate family court judge. Associate judges are selected by the district court judge to work in their court. District Court judges are elected by the people that live in your county.
How quickly must you file your request to appeal the decisions in a temporary orders hearing?
An associate court judge’s decision can often be appealed and then heard again by the district court judge. The devil in these details is that you have a fairly limited amount of time to file your request for a new hearing. The law in Texas is that you must file a request with the clerk of the court within three days of your having learned of the judge’s decisions in the temporary orders hearing. Many cases have an associate judge issue temporary orders orally at the conclusion of the temporary orders hearing. Other cases see the judge issue their written findings by filing them. Either way, you have three days to request that these orders be set aside.
Assuming that you properly file your request for a new temporary orders hearing and it is done on time the district court judge can allow you an opportunity to have a hearing on why a new temporary orders hearing should be granted. Meanwhile, the temporary orders set forth by the associate judge will remain in effect until the district court judge actually overturns them with his or her new decisions.
Appealing the results of your temporary orders hearing to an appellate court judge
In some counties in Texas (usually less-populated counties) there is only one judge per court. Without the benefit of having another person to seek a different outcome to, the above examples of appealing an associate judge’s decisions to the district court judge is not possible.
To appeal the results of a temporary orders hearing in a situation where there is only one family court judge available at the trial level you would need to appeal the decision of the district court judge to the appellate level. This is called a writ of mandamus.
Not only are there relatively few family law attorneys with experience drafting and arguing a mandamus request, but the odds of getting one approved are slim. It all actuality you will be arguing that the district court judge’s decision goes against the totality of the evidence presented in your temporary orders hearing and that there is no basis for the decision as a result.
Keep in mind that if you are successful in your mandamus request you may still have to go before that judge for a trial in your family law case. It’s not as if you will never run across this judge again. Many people choose not to file mandamus requests for this reason alone, as the judge will likely remember you as the person who filed a mandamus against him or her.
Requesting a modification of temporary orders rather than an appeal of them
You have another option at your disposal if you do not like how your temporary orders hearing ended up. However, it may not help you achieve the exact results that you want, either.
The option available to you if an appeal is not in the cards is to file for a modification of the temporary orders. To do so there is a burden placed on you to show that there has been a substantial change in circumstances that has occurred in relation to you, your opposing party or one of the children involved in your case. This is difficult enough to do in relation to final orders in a family law case, so attempting to modify temporary orders can often prove to be even more difficult.
Requesting a social study in your family law case
A social study can be requested if your issue centers around child custody. A social study involves a social worker coming into your home and that of your opposing party to evaluate the homes where your child could live. You, your opposing party, your child and any persons living in your homes will likely be interviewed as well. At the conclusion of the social study a recommendation will be made to the judge as to where your child should reside on a permanent basis.
Going to trial as a last resort
If all else fails and you cannot reach a settlement with your opposing party you can proceed to a trial regarding any outstanding issue in your case. The same judge that likely heard your temporary orders hearing will likely be back to hear the arguments and evidence presented in your trial.
The outcome of your trial is difficult to anticipate only because judges’ decisions can vary depending on the parties and their circumstances. I always tell clients that it is a roll of the dice going to trial, but if you believe that you will not achieve the outcome you desire in mediation, and are willing to take that risk, a trial is not always a bad option if you seek to change the outcomes reached in a temporary orders hearing.
Questions about temporary orders hearings? Contact the Law Office of Bryan Fagan, PLLC
If you have any questions about how to approach a temporary orders hearing or any other subject in family law please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations with one our licensed family law attorneys six days a week. Our attorneys and staff take great pride in representing our clients and we would be honored to discuss how we could do the same for you and your family as well.